Foster, R v [2003] EWCA Crim 178 (10 February 2003)

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England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2003] EWCA Crim 178

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		Neutral Citation Number: [2003] EWCA Crim 178
		Case No: 2000/06446/X4

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Crown Court at Cheshire
The Honourable Mr. Justice Leonard

Royal Courts of Justice
Strand, London, WC2A 2LL

10 February 2003

B e f o r e :

LORD JUSTICE AULD
MR. JUSTICE GAGE
and
MR. JUSTICE POOLE
____________________

Between:

	REGINA	The Crown
	- and -
	GEOFFREY ANDREW FOSTER	Defence

____________________

Mr E Fitzgerald QC & Mr P R Taylor who appeared for the Defence
Mr D P Fisher QC & Miss A Morgan Who appeared for the Crown
Hearing dates : 7th, 8th, 9th, 10th and 11th October, and 7th and 8th November 2002
____________________

HTML VERSION OF JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
____________________

Lord Justice Auld :

Geoffrey Andrew Foster appeals, on a reference by the Criminal Cases Review Commission, against his conviction of murder on 17^th April 1986 before Leonard J. and a jury in the Crown Court at Chester. He had previously applied unsuccessfully to the Full Court on 14^th July 1987 for leave to appeal against the conviction.

On Thursday, 14^th February 1985 someone murdered, by strangulation, an elderly man, Harold Cheatham, at his home in Knutsford, Cheshire. The prosecution case was that the appellant, an inadequate 23 years old man of limited intelligence and abnormally suggestible, was the murderer and that his motive was to prevent Mr. Cheatham identifying him as a thief. His case was that he was not the murderer and that he was elsewhere at the time. The main evidence for the prosecution was admissions of the appellant in interview, towards the end of a long series of interviews, and in his evidence at trial. The prosecution also relied on certain circumstantial evidence, which, if it had stood on its own, would have been insufficient to establish guilt. The appellant's case, in addition to his alibi, was that his admissions were unreliable because he was on the borderline of being mentally defective and highly suggestible. In addition to his evidence of alibi, he called a clinical psychologist as to his mental state. The issues raised in the appeal concern the reliability of his confessions and a number of alleged errors by the Judge in his summing-up and directions to the jury.

The prosecution case and evidence in more detail were as follows.

Mr. Cheatham lived on his own. H was known as "the egg man" because he had previously sold eggs. He collected money for the football pools and it was known locally that he kept money in the house. The Foster family, most or all of whom were as or more inadequate than the appellant, lived nearby.

On the evening of the murder, at about 8.45 p.m. a Mrs Margaret Patten, who lived in the same vicinity, was passing Mr. Cheatham's house. She then saw at the front of the house a youth whom she recognised as one of the Foster boys, she was not sure which one. He said that he was going to see the egg man and added something about keeping quiet and then made as if to knock on Mr. Cheatham's front door.

There is no doubt that Mr. Cheatham was in his house at about that time and was murdered there in the course of the evening. But the prosecution's direct evidence then suffers a break in the narrative until two neighbours found his dead body on the following morning. They found it lying on the floor, partly under the table in the downstairs sitting room with a razor flex around the neck and the television on. There was also a white adaptor plug on the floor, which fitted the plug on the flex. From the police pathologist's evidence, it looked as though the murderer used considerable violence, the strangulation with the flex having taken at least half a minute, probably much longer. The flex had left a groove around the neck and there was also bruising to the face.

Although Mr. Cheatham did not smoke, an ashtray on the table contained a cigarette end of an unidentifiable brand. Later examination by the police revealed no fingerprints connecting the appellant with the crime. And although the jumper that Mr. Cheatham had been wearing at the time of the attack on him was one that would have shed fibres, none was found on the appellant's or his brother Derek's clothing. Indeed, nothing was found at the scene to connect either of them with Mr. Cheatham or the room in which he died.

The next incident forming part of the prosecution case was on the following day, Saturday, 16^th February, and concerned Mrs. Patten again. According to her evidence, she saw at the local rubbish tip the Foster youth whom she had seen at Mr. Cheatham's front door on the Thursday evening, and he told her to give a false description to the police of the clothing he had been wearing that night. She did that, also mis-describing his general appearance. Her explanation in evidence for having misled the police in that way was that she had not believed that the youth could have committed the murder because he did not look the type to do so. Later she saw the police again and made a statement in which, on her evidence, she had muddled Geoffrey with Derek, calling one by the other's name. She said, in cross-examination that it was "Derek" whom she had seen on the Thursday evening. She was not asked to clarify in evidence whether she meant by that, the man whom, rightly or wrongly, she called Derek, or the man in the dock. It is plain that Mrs. Patten was far from a satisfactory witness. In addition, as she told the jury, she had been "in trouble with the police" – a euphemism for a criminal record of some 16 offences of dishonesty.

The police meanwhile were making extensive enquiries and questioning and taking witness statements from many people in the locality whom they thought might be able to help them identify the murderer. These included the appellant who, on 26^th February, made a witness statement asserting that he had been at home all evening with his mother and brother on the night of the murder.

There then followed a series of ten police interviews of the appellant extending over a period of six days, starting on 3^rd March. At each of the first nine interviews no solicitor or independent person was present. In the first six he denied having killed Mr. Cheatham and in the seventh, eighth and ninth, he admitted having done so. Only at the tenth interview, the purpose of which was to take a written statement from him confirming those admissions, was there an independent person present, a social worker Mrs. Janet Ash.

On the first three interviews, all on 3^rd March and each lasting about an hour, he was questioned by Detective Sergeants Layfield and Butler. The first two interviews were not under caution; the third was. In each he maintained the alibi he had given in his witness statement, that he had been at home all evening with his family. In the first interview they put to him that he had been seen talking to Mr. Cheatham just outside his, Mr. Cheatham's house a week before the murder, which he denied. In the second, the police put to him at an early stage an apparently unrelated allegation that the appellant had indecently assaulted a young man called A. They then reverted to the suggested meeting with Mr. Cheatham a week before the murder, which he then admitted, but said that it had been to borrow a bicycle. In the third interview, under caution, he retracted that admission and said that he had never been to Mr. Cheatham's house. In the course of this interview the officers asked him about his association with old men in the locality, whether he had been "doing naughty things" with one old man, both of which he denied. The officers also put to him that his brother, Derek, had told them that he, the appellant, had gone out on the Thursday night and that another brother, Stephen, had told them that he, the appellant, had said he had committed the murder, both of which assertions, he denied.

An important part of the appellant's complaint on appeal about these three interviews is that not only did the officers question him on his own but they did so oppressively, indicating that the strangulation had been with an electric flex, information that had not been made public. His trial counsel, Mr John Burke, QC, (now His Hon. Judge Burke, QC) put to the officers in cross-examination, and he, the appellant, initially gave evidence, that one or other of the officers had physically assaulted and intimidated him by clouting him around the head, putting an electric flex around his neck and going through the motion of strangling him, allegations that he later withdrew while still in the witness box. It was also his case that the officers had questioned him over forcefully, with raised voices, and that they had put the questions as to A and had made references to his dead father simply to unsettle him. The officers denied using the alleged or any violence to the appellant or over-forceful questioning or putting unrelated matters to him with a view to unsettling him. DS Layfield, said that, although it was apparent to them that he was of low intelligence and was sometimes slow in answering, he had had no difficulty in dealing with their questions.

The absence of a solicitor or independent person and such conduct, if it occurred, did not result in him admitting guilt in these interviews. But Mr. Edward Fitzgerald, QC, on his behalf, submitted that it was the start of an unnerving process of pressure on a vulnerable and suggestible young man that was to continue over the following interviews, leading him eventually to make an unreliable confession.

The fourth interview was on 5^th March at the appellant's home, in which, after questioning, he made a witness statement saying that he had lied about trying to borrow Mr. Cheatham's bicycle in order to dissuade the police from asking him any further questions.

On 7^th March the police searched the appellant's home. An officer found a black wallet in a cardboard box under the bed in an upstairs bedroom shared by the appellant and two of his brothers, Stephen and Darren. There was some other prosecution evidence about the wallet at the trial. Mr. Cheatham's daughter said that it was similar to one she had seen in her father's house before his murder but which had since disappeared. Mr. Ward, a friend of the deceased, who had a key to his house, said that he did not recall his using that wallet. When the officer later, on 8^th March, showed it to the appellant, he said "Might be Mr. Cheatham's". Also found in the police search of the appellant's home was a Trustee Savings Bank account book in the name of the appellant's brother, Derek, showing an opening deposit of £4.00 on 15^th February, the day after the murder. The Bank's witness said that the account had been opened by a youth, who had been with a male of the same age, though the witness did not identify either of them.

On the same day as the search, 7^th March, in the morning, the police arrested the appellant and he thereafter remained in custody. The arrest was followed by four further interviews that day of the appellant on his own. The first three were conducted this time by DI Mellor and DC Wilson. In the first of them, the fifth of the series of ten, he maintained his alibi of being at home all evening on the day of the murder and his denial of having spoken to Mr. Cheatham at his house in the first week of February.

The police began the second, the sixth in the series, by putting to him allegations of homosexual behaviour towards the boy A and followed them up with yet further questions about meeting Mr. Cheatham at his house in the first week of February. This time the appellant admitted the meeting, but insisted that it had only been outside the house on the path and denied that he had ever been inside the house or that he had committed the murder. At the end of the interview, DI Mellor said to him "You know it is wrong to tell lies and we will find out just the same as we found out about A. Would you like to think about it before we ask you any more questions?" The appellant said that he would and the officers asked him if he wanted to speak to a solicitor – interestingly - not about the allegation of murder but about what he had done to A. The appellant said "No". They asked him again whether he would like to speak to a solicitor, this time specifically mentioning Mr. Simon Armstrong. He still said "No". Then they asked him if he would like his mother to come to see him, and he said, "No, I do not want to tell her about A".

In the third interview of the day, the seventh in the series, the appellant initially stuck to his alibi, but then admitted that Mrs Patten had seen him outside Mr. Cheatham's house on the evening of the murder. However, he said that he was on his way to the house of a friend called Brian Owen who lived near Mr. Cheatham, where he was shortly afterwards joined by his brother, Derek. He also acknowledged the second incident mentioned by Mrs. Pattern, the meeting at the rubbish tip, on 16^th February, two days after the murder. However, he denied having told her to give a false description of him to the police so as to hide the fact that she had seen him outside Mr. Cheatham's house on the night of the murder. Then, after some further changes of story as to his movements on the evening of the murder, the police reminded him that he had now admitted that Mrs. Patten had seen him outside at or close to Mr. Cheatham's house. He then confessed to having strangled Mr. Cheatham. He said that he had gone to the house with his brother, Derek, to steal Mr. Cheatham's money, that he had knocked on the door and Mr. Cheatham had let him in and that Derek had stayed outside by the front gate. At this point the officers stopped questioning the appellant, because he said that he felt tired – it was then just after 9 p.m.

The fourth interview that day, the eighth in the series, was a short one. It took place because D Supt. Morgan and DI Wilson, also present at the police station, visited the appellant in his cell to make sure that DI Mellor had been right in accepting that the appellant was too tired for the interview to continue. In response to an opening remark by the D Supt "I understand you made remarks to Mr. Mellor about Mr. Cheatham", the appellant said that he had told DI Mellor what he had done, that he had strangled Mr. Cheatham by putting his hand around his neck, and he demonstrated how he had done it. He added that he had knocked on the door and that Mr. Cheatham had let him in. He then said that he was tired and wanted to go home.

The appellant's case about the interviews of that day was that throughout them he had been very tired and that DI Mellor had at some point come into his cell, grabbed him by the wrists and given him a dig in the side. He also alleged that DI Mellor had slapped the table and struck his fist on the wall. He made various allegations of oppressive questioning. When these matters were put to DI Mellor in cross-examination, he denied them.

According to DI Mellor, although the appellant had sometimes been slow in answering his questions, he had understood them and had known the difference between lies and the truth. He said that it was only towards the evening that the appellant had shown signs of tiredness. As to his questions in the second interview of the day about A, the officer said that they may have had something do with the murder enquiry, for example, the link between Mr. Cheatham and the murderer might have been of a homosexual nature, a possibility, he added, that later proved to be unfounded. He denied the alleged assault in the cell or the other threatening gestures. And he denied any oppressive questioning or raising his voice.

On the following day, 8^th March, there were two further interviews, the ninth and the tenth, both conducted by DI Mellor and DC Wilson. In the first of them, the appellant, who was still being questioned on his own, repeated his confession of the night before that he had murdered Mr. Cheatham. And in the second, in the presence of a social worker, Mrs Ash, he again repeated it in answers to DI Mellor's questions which the officer took down in the form of a written statement under caution and which the appellant signed. We should say a little more about each of those interviews.

In the first, he repeated his account of having gone to Mr. Cheatham's house with his brother Derek and of his brother having stood outside to keep watch while he knocked on the door. He said that Mr. Cheatham had let him in and that he, the appellant, had asked him for money and slapped him around the face before strangling him with his hands. (This was one of a number of matters on which the prosecution relied as special knowledge as it was consistent with the bruising found afterwards on the dead man's face, since the fact of bruising had not been released to the press.) The appellant said that he had taken from an armchair a cable with a white plug attached to it, pulled off the plug and used the cable as a ligature around Mr. Cheatham's neck to complete the strangulation (also, a matter of special knowledge on which the prosecution relied; the police evidence being that the use of flex as the murder weapon had been withheld from the press and not mentioned by DI Mellor or DC Wilson to the appellant). In response to further questions, the appellant said that the television had been on and that there had been no flowers on the table, as was the case (again, matters on which the prosecution relied as special knowledge). He told the officers that he had taken a wallet containing £30 from the table and had later shared the money equally with his brother, Derek, and had given him the wallet. At the officer's request, he drew a rough sketch plan of the scene in the living room, which he described as he drew it. It depicted correctly the rough lay-out of the furniture, including, correctly, that the table was square and that the chair next to it was a kitchen chair, the position of the body and the presence of football coupons on the table (all of which, the prosecution relied on as further evidence of special knowledge). At the end of the interview, he agreed to make a written statement. On being asked if he wanted his mother or a solicitor to attend while he made it, he said that he did not want either. He asked instead for his social worker, Mr. John Linney, to attend.

The police tried to contact Mr. Linney, but he was not available. Instead, they arranged for Mrs. Ash to attend, which she did, as a substitute for Mr. Linney, at very short notice. On her arrival at the police station, DI Mellor told her briefly why and how she had been asked to assist in this way. She had a brief word with the appellant. On her uncontested evidence at the trial, she told him who she was and he indicated that he was quite happy to have her there instead of Mr. Linney. Then, in her presence, DI Mellor took the written statement under caution from the appellant. The appellant asked the officer to write it for him. The officer did it slowly, one question and answer at a time, reading out each answer as he had written it and asking the appellant if it was correct before putting the next question. When the written statement was complete he then read it all over to the appellant, asking him again, question by question, if it was true and the appellant again, answer by answer, confirmed that it was. Then Mrs Ash read it over to him, pausing at the end of each sentence, to ask him if it was true, and again he confirmed that it was, and then signed it. So, before signing the statement as a true confession, it had been read over to him one way or another, three times. Mrs Ash said that her overall impression was that the appellant was of quite low intelligence and that he had not been subjected to any pressure.

Later that day, 8^th March, the police formally cautioned and charged the appellant with murder and he wrote on the charge sheet, "Yes, I did murder Mr. Cheatham".

The appellant gave evidence. In his evidence in chief, he maintained his original alibi of having stayed at home all evening and of having gone to bed early on the day of the murder. He said that he had only known Mr. Cheatham and Mrs. Patten by sight and had never spoken to Mrs. Patten. He denied any knowledge of the wallet. As to the interviews, he made a number of allegations of violence and oppressive conduct, to which we have already referred, by way of explanation of his early changes of story concerning his meetings with Mr. Cheatham and Mrs. Patten and about his embarrassment at the police suggestions of his indecent behaviour with A. He said that all that pressure had led him, falsely, to confess to the murder. As to the 8^th interview, when D Supt. Morgan and DI Wilson had visited him in his cell, he said that he had repeated the confession because he had still felt under pressure. As to the ninth interview, when he had first given a detailed account of how he had committed the murder and had drawn a sketch plan, he had no explanation for the correctness of the plan and denied that he or the police had said anything about the cable or that he had mentioned the plug. As to the final interview in which he had provided a written statement of confession in the presence of Mrs. Ash, he said that he had not wanted her there. Rather, he had wanted his solicitor to attend, but the police would not telephone him. He made no other complaints about that interview, saying, "Nothing else was said or done which made me confess". He said that he had made the statement to stop the police starting on him all over again and added, "I did not want to sign the confession to murder and I did not even know about it". Finally, he said that he did not know why he had written on the charge sheet, "I murdered him".

In cross-examination, the appellant withdrew his allegations of violence and other oppressive behaviour against Detective Sergeants Layfield and Butler in their conduct of the first three interviews on 3^rd March. He said that he had no complaints about the way in which they had questioned him or taken his witness statement. He went on to say that even by the time of the final interview on 8^th March the police had not said or done anything to make him feel afraid. He said that he had lied in the alibi he had earlier put to them and had eventually confessed because he had known that his mother could not truthfully support it. He then confessed his guilt to the jury. He told them that he had gone to Mr. Cheatham's house to steal some money, but events had gone a lot further than he had intended and that he had strangled Mr. Cheatham.

There was then, not surprisingly, an adjournment, but it did not lead to a change of plea. The appellant went back into the witness box and was re-examined and retracted the confession he had made in cross-examination. He said that it was not true, that he did not know why he had said it, but that he had been upset by the fact that DI Mellor seemed to think that he was a homosexual and by the questions put to him in court.

The trial continued and Professor Gudjonsson, a clinical psychologist, was called to give evidence on what had been and was to remain the central issue in the case, whether the appellant, by reason of his mental condition and consequent suggestibility, might have confessed to something that he had not done. Professor Gudjonsson was a leader – if not the leader – in his discipline in devising and applying methods of psychological testing. His evidence, which the prosecution did not challenge, was that he had conducted tests on the appellant and found that, though not mentally ill, he suffered from limitations and was outside the normal range. He had an intelligence quotient of 72, which indicated a mental age of about 10; he was on the borderline of being a mental defective; he was highly suggestible with a strong tendency to contradict himself; and he was:

" overall … a vulnerable individual and of limited intelligence and coping resources. When faced with a demanding situation I think he would be particularly at risk of giving inaccurate information."

The jury, by their verdict of guilty, clearly rejected the possibility that the appellant's confessions in interview and in the witness box were unreliable on account of his suggestibility and the pressure of interview and/or cross-examination.

The Reference and the Court's general approach to the appeal

The Criminal Cases Review Commission has referred the case back to this Court on its statutory bases of:

"a new argument not advanced at trial", namely failure to exclude the evidence of the confessions under section 78 of PACE and/or the absence of a judicial warning under section 77 of PACE as to the special need for caution before convicting the appellant in reliance on his confessions; and

"new evidence not adduced at trial", namely qualification by Mrs. Ash of her evidence at trial and expansion by Professor Gudjonsson of his evidence at trial, all going to the central issue in the case of the reliability of the confessions and/or the need for a section 77 warning. This is the main thrust, as it seems to us, of the Commission's reference, though it expressed itself in slightly different terms in its summary of reasons in paragraph 10.10 of its Statement:

"The information provided by Mrs. Ash, … the Commission considers that this places the reliability of the confession at the final interview, and the issue of possible breaches of the Judges' Rules, in a quite different light. It also raises the possibility that the Court of Appeal might now conclude that Mr. Foster's case did meet the criteria for triggering a section 77 warning.

The development and clarification of the law on exclusion of evidence following PACE. … PACE was in force by the time of the trial and it would have been open to Mr. Foster's counsel to apply for exclusion of the police interview evidence under section 78 of PACE. The Commission has concluded that no such application was made whereas, on the plain words of the statute it should have been.

Mr. Foster's confusion over the A allegations which ultimately led to the jury being misled about the factors that could be taken into account when assessing the reliability of his confession."

The appellant now appeals against conviction on those and a number of inter-related grounds, the main thrust of his case being that his confessions in interview should have been excluded or, at the very least, the Judge should have given a section 77, or similar, warning to the jury against convicting in reliance on them. The individual grounds of appeal are:

(1) wrongful admission in evidence of the confessions in interview;

(2) misdirection of the effect of Professor Gudjonsson's evidence;

(3) failure of the Judge adequately to warn the jury of the danger of convicting the appellant, a vulnerable and highly suggestible person, on the strength of his confessions; and

(4) misdirection about Mrs. Patten's evidence

(5) failure of the prosecution to disclose to the defence at trial documents going to police knowledge of his vulnerability at the time of the investigation; and

(6) failure of the prosecution to disclose material and of the defence to adduce evidence in favour of the appellant, both on the issue of the appellant's "special knowledge" of the offence.

It is common ground that the prosecution case, in the words of section 77, depended "wholly or substantially" on the appellant's confession. There was no eye-witness or scientific evidence to support the challenged confessions. There was, however, as we have noted, a good deal of "special knowledge" evidence capable, so the prosecution maintained, of supporting its case as to the reliability of the appellant's confessional account of the murder.

Before considering each of the grounds of appeal, individually and cumulatively, we should note that there have been considerable changes in the law governing investigation of offences and the conduct of criminal trials since 1985 and 1986 when, respectively, this investigation and trial took place. The investigation was governed by the Judges' Rules and accompanying Administrative Directions. However, the Police and Criminal Evidence Act 1984 was already on the statute book and its Codes of Practice were known to be about to replace those Rules with a new and more rigorous regime. By the time of the trial the relevant provisions of the new Act and its Codes had been in force for over three months (since 1^st January 1986). Quite apart from that legislative change, the courts have, over the intervening 15 or so years, progressively demanded more from the trial process in the safeguards that it should provide against unsafe convictions. With the arrival on the scene of the Criminal Cases Review Commission and its ability to refer very old convictions to the Court, the Court has had to devise a means of assessing the safety of convictions by judging yesteryear's cases by a combination of the standards of the time and of today. The approach is that stated by Lord Bingham of Cornhill, LCJ in R v. Ashley King [2000] Crim LR 835, CA; Transcript CA 10^th December 1999, at paragraph 49:

" …We should not (other things being equal) consider a conviction unsafe simply because of a failure to comply with a statute governing police detention, interrogation and investigation, which was not in force at the time. In looking at the safety of the conviction it is relevant to consider whether and to what extent a suspect may have been denied rights which he should have enjoyed under the rules in force at the time and whether and to what extent he may have lacked protections which it was later thought right that he should enjoy. But this court is concerned, and concerned only, with the safety of the conviction. That is a question to be determined in the light of all the material before it, which will include the record of all the evidence in the case and not just an isolated part. If, in a case where the only evidence against a defendant was his oral confession which he had later retracted, it appeared that such confession was obtained in breach of the rules prevailing at the time and in circumstances which denied the defendant important safeguards later thought necessary to avoid the risk of miscarriage of justice, there would be at least prima facie grounds for doubting the safety of the conviction - a very different thing from concluding that a defendant was necessarily innocent."

In Ashley King the prosecution case rested entirely on confessions obtained in breach of the rules at the time and in which there was fresh evidence from a psychologist, which as Lord Bingham CJ, giving the judgment of the Court, summarised it at paragraph 66, showed that the appellant was significantly less intelligent and more vulnerable than previously understood, and abnormally suggestible and compliant. The Court concluded that had the defence had the benefit of this new evidence at the trial there would have been strong grounds for seeking the exclusion of the confessions under sections 76 and 78 of PACE or possibly for want of a section 77 warning. A year or so later, in R. v. Pendleton [2002] 1 WLR 72, the House of Lords quashed a conviction in another case in which the appellant relied on undoubtedly fresh psychological evidence to unseat a conviction based on a partial confession and otherwise not very strong evidence. Lord Bingham, with whom the other Law Lords agreed, said that it was uncertain what the jury would have done had the psychological evidence been available at the trial and, accordingly, it was impossible to be sure of the safety of the conviction.

Taking these authorities as our guide, we ask ourselves three questions:

whether to receive under section 23 of the Criminal Appeals Act 1968 all or some of the fresh evidence tendered and, if so, whether, if we had been in the position of the Judge, but having regard to the fresh evidence and to present day standards as well as those at the time of trial, we would have excluded the confessions under sections 76 or 78 of PACE; see e.g. R. v. Parris (1989) 89 Cr App R 68, per Lane LCJ at 72-73; and R. v. Roberts (unreported) 19^th March 1998;

if not, whether, in the light of the fresh evidence tendered, and, with or without a section 77 or other suitable warning, the jury might have acquitted the appellant; see e.g. R v. Allen (unreported) 10^th July 2001, per Potter LJ at paras. 29, 38, 42 and 43; and R. v. Downing (unreported) 15^th January 2002, per Pill LJ at para. 45;

whether, with or without any such fresh evidence, but with a section 77 or other suitable warning, the jury might have acquitted the appellant; and

whether, in any event, the conviction is unsafe.

If the answer to any of the first three questions question is "yes", it would inevitably leave us, given the paucity of the other prosecution evidence, unsure of the safety of the conviction and require us to quash it.

Wrongful admission of confessions

The first main ground of appeal is that the Judge wrongly admitted into evidence the confessions of the appellant in the last four interviews, including his written statement of confession under caution given in the final one in the presence of Mrs. Ash. Associated with that ground, but not in truth distinct from it, is a complaint that the appellant's trial counsel, Mr. John Burke, QC, (now His Hon. Judge Burke, QC) and Mr. Jonathan Foster (now QC), wrongly failed to request the Judge to exclude this evidence. Either the evidence was wrongly admitted with consequence of rendering the conviction unsafe or not. Determination of that issue does not depend on whether the appellant's counsel may have been negligent, or if negligent on the degree of it, in failing to seek its exclusion. See R. v. Clinton (1993) 97 Cr App R 320, at 326; R v. Nangle [2001] Crim LR 506; and R. v. Allen (Case No. 98/07383/X2 10^th July 2001. A trial judge has a duty, where on the evidence and circumstances it is appropriate, to consider the question of admissibility for himself, either under section 76 or section 78 or in his inherent jurisdiction as may be appropriate, to ensure fairness. See e.g., as to section 76, R. v. Roberts (and cf. R. v. Raphaie [1996] Crim LR 812, at 813); and, as to section 78, R. (Safi) v. Governor of Brixton Prison & Anor. [2001] 1 WLR 1134, DC, per Rose LJ at paras 52 and 59.

However, we should say, having heard evidence from Judge Burke and his instructing solicitor at trial, Mr. Simon Armstrong, with a view to considering whether we should receive it as fresh evidence under section 23, we can see no possible basis for criticism of their conduct of the defence. Their account, which we accept and understand, is that Mr. Burke (as we shall call him from now on) and Mr. Foster gave careful consideration whether to ask the Judge to exclude the confessions and that they decided not to do so for three main reasons. First, they considered that it would have little chance of success under the Judges' Rules or PACE or otherwise in relation to the first nine interviews, and no chance of success in relation to the tenth interview in which the appellant made a written statement of confession in the presence of Mrs. Ash. Second, they considered that even if it might succeed in relation to the first nine interviews, it would deprive them of making use of some of that earlier history in challenging the reliability of the written confession given in the tenth interview. Third, they feared that the voir dire, which would be a necessary part of any such application, would provide the police with a rehearsal of the cross-examination that would almost certainly have to be repeated before the jury, thus blunting its impact before the jury.

As we have said, at the time of the trial in 1986 sections 76 and 78 of PACE had come into force. The essential question raised by this ground of appeal is whether, regardless of the stance of defence counsel, the fact that the Judge did not intervene to exclude the confession under one or other of those provisions rendered the conviction unsafe judged by the standards of the time and today. We approach that task by considering whether we, if sitting as the trial judge at the time, would have excluded the confessions, taking into account the evidence at the time and any fresh evidence as may be receivable under section 23(1) and (2) of the Criminal Appeal Act 1968 and also with today's standards in mind.

Mr. Edward Fitzgerald, QC, who, with Mr. Paul Taylor, appeared for the appellant, but neither of whom was instructed at the trial, submitted that the Judge should have excluded the interview confessions because they had been obtained in breach of the Judges' Rules which, as we have said, governed the conduct of the interviews and, in the circumstances, rendered the conviction unsafe. He advanced three main reasons for such breach and consequent unsafety: first, that the police had conducted the interviews in an oppressive, unfair and misleading manner; second, that they had not first advised the appellant of his right to have a solicitor present; and third, they had not arranged for the attendance of an appropriate adult. Underlying all three reasons is the low intelligence and psychological vulnerability of the appellant, rendering him, so Mr. Fitzgerald maintained, highly suggestible in interview and prone to make false confessions.

As we have said, the fairness of the police interviews of the appellant resulting in his confessions should be considered in the context both of the procedures and standards of fairness in force at the time of the trial and now. See R. v. Bentley (Deceased) [2001] 1 Cr App R 21; and R. v. Ashley King (supra). The Judges' Rules and Administrative Directions on interrogation and the making of statements governed the police conduct of the interviews of the appellant and the present conduct of such interviews is governed by PACE, in particular section 58 in its provision of an entitlement of persons in custody to consult a solicitor, and sections 76 and 78 and Code C with regard to the admissibility of admissions and confessions. Mr. Fitzgerald submitted that the police conduct of the interviews, the vulnerability of the appellant and the absence of a solicitor and/or an appropriate adult throughout the key interviews breached both the Judges' Rules and PACE and Code C, but that, in any event, by the time of the trial, the Judge had power under sections 76 or 78 to exclude the appellant's confessions and, for the same reasons, should have done so.

As to the appellant's confession in evidence, Mr. Fitzgerald submitted that, but for the wrongful admission of his confessions in interview, he would never have had to give evidence since the remainder of the prosecution evidence would have left no case to answer. We say immediately as to the latter point that where a defendant admits his guilt in evidence, we doubt whether the fact that, but for such wrongful admission, he would not have gone into the witness box, would necessarily render his conviction unsafe. If a court confession is considered by a jury to be reliable, it is difficult to see how it fails to meet the statutory test and somewhat artificial to suggest that it does so by the route of abuse of process or because, but for the error the case might have taken a different turn. There is a conflict of authority on the point, which is helpfully summarised in the current edition of Archbold, at para. 7-79; it was not fully argued before us; and in the light of our conclusions on Mr. Fitzgerald's submission as to the admission into evidence of the confessions in interview, it is unnecessary for us to resolve it.

Fresh evidence

Mr. Fitzgerald's complaint about the admission into evidence of the confessions rests primarily on the fresh evidence that he asked the Court to receive under section 23 from the following persons:

Peter Mylan, a former police officer but not a witness at the trial, about the manner of DS Butler's questioning of the appellant in one of the early interviews;

Mrs. Janet Ash, the social worker who, at the request of the police attended the final police interview of the appellant on 8^th March 1985 and who gave evidence at the trial;

Professor Gisli Gudjonsson, Professor of Forensic Psychology, University of London, whose evidence at the trial as to the appellant's mental condition in interview and at trial was as we have summarised it in paragraph 29;

Dr. Angus Campbell, a consultant forensic psychiatrist, who prepared a report for the appellant's solicitor for the trial, but who, although available to attend court in the latter part of the trial, was not called to give evidence on the appellant's behalf;

police action notes referring to the appellant's "sub-normality"; and

a police action note and uncalled evidence of a confession made by another man, both going to the issue of the appellant's special knowledge.

At the suggestion of and with the agreement of Mr. Fisher and Mr. Fitzgerald, the Court invited Mr. Burke and Mr. Armstrong to give evidence de bene esse to the Court to enable both Counsel to cross-examine them about their conduct of the defence at trial. The purpose was either to enable Mr. Fisher to test or meet such fresh evidence on behalf of the appellant as the Court might decide to receive, or to enable the appellant to advance it as further fresh evidence in support of his appeal. Both Mr. Burke and Mr. Armstrong gave evidence to us by video-link and were duly cross-examined by counsel on both sides.

Mr. Peter Mylan

Mr. Mylan was, as we have said, a former police officer. He was peripherally involved in the police investigation of Mr. Cheatham's murder in February 1985. In about September 2001, some 16 years after the trial and after reading in a local newspaper about this appeal, he contacted the appellant's solicitors and provided a witness statement. However, he left it unsigned and undated until 27^th February 2002. In the statement he said that he and a fellow officer, PC Hawthorne, overheard DS Butler and DS Layfield interviewing the appellant. According to his statement, DS Butler had suggested to the appellant how he had murdered Mr. Cheatham, mentioning in particular the use of the razor flex, which the appellant denied. In the statement he also mentioned having heard the officers put to the appellant that he had behaved indecently with the boy A, which again the appellant denied. He also commented in the statement that it had been obvious to him that the appellant had not been "all there", that he had been "frightened, probably more about the indecent assault allegation than the murder", and that it was "over his head".

That account of Mr. Mylan, if capable of belief and otherwise receivable in accordance with the considerations set out in section 23(2) could be material to the issues raised in the appeal as to the police conduct of the interviews, the appellant's vulnerability and also as to his special knowledge of the circumstances of the murder. However, shortly before the hearing of the appeal, Mr. Mylan retracted his statement, saying that he had mistaken the identity of the person whom he had seen and heard DS Butler and DS Layfield interviewing. Given this curious turn of events, the Court took the view that it should itself require Mr. Mylan to attend and give evidence de bene esse and be available to both sides for cross-examination. In his evidence Mr. Mylan proved to be a most unsatisfactory witness, in particular as to the account he had given in his witness statement of the officers' questioning of the appellant. He suggested that he had witnessed such questioning, but that it was not after all of the appellant, but of someone else. It is sufficient to say that the longer he was in the witness box the clearer it became that his evidence was not capable of belief. For that reason we indicated at an early stage during the course of submissions in the appeal that we would not receive it.

Mrs. Janet Ash

As we have said, Mrs. Ash's evidence at the trial was that, on her arrival at the police station, she had told the appellant, in the presence of DI Mellor who she was and that he had said to her that he was quite happy to have her present at the interview. She said that the officer had conducted the interview slowly and carefully, that in the course of it he had stopped several times to read out what he had written to make sure that the appellant had understood and agreed with it. She said that she had been "perfectly happy with the statement being taken in a very slow and careful manner". She said that she had asked two questions herself and that "[t]he overall impression … [she] had of the whole process was this: the interview was handled with great care and understanding and there was no pressure at all". When asked what she had thought of the appellant's intelligence, she said that "it … [was] difficult to say, but it … [was] quite low".

The Commission approached Mrs. Ash in the course of its investigations, as a result of which she made a written statement to the appellant's solicitors on 21^st May 2001. The Court heard her evidence with a view to considering its receipt under section 23. She gave much the same account as she had done in evidence at the trial, in particular that she had been satisfied with the way in which the interview had been conducted. However, she added that, although she had been a qualified social worker for nine years at the time of the interview, she had not been very experienced; she had only worked a few years part-time; she had had no specialist experience or training in dealing with mentally handicapped adults; she had not been briefed or given any guidance as to her role in the interview; and it was the first police station interview that she had attended. She also told the Court that she has since had more experience of police station procedures, including the use of trained "appropriate adults" for such interviews and that, if she had had that experience at the time of the appellant's interview, she would have handled it differently. She would have enquired about the previous interviews, how long he had been in custody, whom he had seen whilst in custody, and would have insisted on speaking privately to him to ensure proper protection of his rights. She would have advised him to ask for the attendance of a solicitor. And she would have considered whether a psychiatrist should assess him.

Having heard Mrs Ash's evidence and the submissions of counsel as to the receipt of it for the purpose of section 23, we consider that we should not receive it. Although clearly capable of belief, it is not fresh evidence. It adds little of significance to her evidence at the time as to the conduct of the interview or her role in it and would not afford any ground for allowing the appeal. She confirms her evidence at the trial of the essential fairness of the interview itself, as she had observed it.

The only possible matter of substance that Mrs. Ash has added is by way of hindsight on the adequacy, or, as she now perceives it, the inadequacy of her role as a protection for the appellant. In so far as this amounts to a view of what she considers her experience and role should have been, whether as an "appropriate adult" or otherwise, the evidence would have been inadmissible at the trial and, in any event, in important respects wrong in law. Insofar as it might have prompted her to make more enquiries than she did, the possible outcome of them, as Mr. Fisher observed is pure conjecture and one based on her hindsight at that. Insofar as she now draws attention to her relative inexperience at the time, we have seen from an attendance note prepared by Mr. Armstrong, the appellant's trial solicitor, that she had made that plain to him in interview several months before the trial, and Mr. Burke could have asked her about it in cross-examination. She had also told Mr. Armstrong in the same interview that she had considered the appellant to be of very low intellect and that DI Mellor had told her before she met the appellant that day that he had already given a detailed description of the murder, that he had been asked if he wanted a solicitor present and had said that he wanted a social worker instead. Thus, her inexperience at the time and her view of the low intelligence of the appellant, as well as her account of the fairness of the interview, were apparent well before the trial to those representing him. It is not apparent from the material before the Court whether she was cross-examined about her inexperience; probably not, because it appears from the Judge's summing-up that her evidence was not disputed. Nor was any reliance made on the point in the unsuccessful application for leave to appeal in which Mr. Armstrong continued to act for the appellant.

Despite the relaxation by amendment of section 23 in 1995 of the former pre-conditions of reception of fresh evidence to particular considerations going to the exercise of the Court's discretion, the essential question for the Court remains the same, namely whether "it is necessary or expedient in the interests of justice to receive the evidence". In R v. CCRC, ex p Pearson [1999] 3 All ER 498, Lord Bingham, while emphasising that all such decisions must turn on their own peculiar facts, set out at 504b-d the effect of the change in section 23 on the exercise of the statutory discretion:

"The Court of Appeal is not precluded from receiving fresh evidence if the conditions in sub-s (2)(a), (b), (c) and (d) or any of them are not satisfied, but the court would for obvious reasons be unlikely to receive evidence which did not appear to it to be capable of belief, or which did not appear to it to afford any ground for allowing the appeal, or which would not have been admissible in the trial court. The Court of Appeal would ordinarily be less ready, and in some cases much less ready, to receive evidence which the appellant had failed without reasonable explanation to adduce at the trial, since receipt of such evidence on appeal tends to subvert our system of jury trial by depriving the decision-making tribunal of the opportunity to review and assess the strength of that fresh evidence in the context of the case as a whole, and retrials, although sometimes necessary, are never desirable."

Mr. Fitzgerald nevertheless prayed in aid Mrs. Ash's subsequent appreciation of her inexperience at the time in conjunction with his reliance, also as fresh evidence, on the subsequently expressed views of Professor Gudjonsson on the appellant's mental state at the time. He relied on the reasoning of this Court in ex p Pearson, in which the Court held that subsequently acquired psychiatric knowledge may, depending on the facts, be receivable as fresh evidence. However, and regardless of the candidacy of Professor Gudjonsson's recent views for reception as fresh evidence, our view is that Mrs. Ash's new evidence adds little or nothing of significance to her evidence at trial and that, to the extent that it may do, it would not have any material effect on the outcome of the appeal. In the light of Mr. Armstrong's evidence, there is also no reasonable explanation for failure to adduce it at the trial. Accordingly, we do not consider it necessary or expedient in the interests of justice to receive it under section 23(1).

Professor Gudjonsson

As to Professor Gudjonsson's evidence at the trial, we should set out, in addition to our summary of it in paragraph 29 above, the Judge's much fuller description of it on pages 35-37 of his summing-up:

… "… then we had the distinguished psychologist, Mr. Goode Johnson [sic] who carried out tests on the defendant in the Remand Centre at Risley. He found that his intelligence quotient was 72, meaning an approximate mental age of 10. I do not know whether that surprises you or not. That is what he said and there is no real dispute about it. He said that the defendant was on the borderline of mental defective. He attended a special school. Then he checked his ability to retain things in his memory by reading passages to him and seeing how much of the passages he remembered or the content of the passages. In the morning his score was 12 out of 40. In the afternoon it was only 40 per cent of that showing that he functioned very much less well in the afternoon than in the morning. He looked tired and his attention was poor.

Then he carried out tests of suggestibility, tendency to give in to misleading questions. A misleading question is one which contains an incorrect premise and Dr. Goode Johnson [sic] was of the opinion that he was highly suggestible. Twice the readiness of the average person to accept those leading questions – slightly higher in the afternoon. Then the test of acquiescence, as he put it. He put 12 pages of logically opposite questions. He was over twice the average for males of that group in his answering things which were logically opposite. Apparently he had a strong tendency to agree and contradict himself. General degree of compliance was substantially greater than that of an ordinary person, very eager to please and avoid conflict or confrontation.

'My overall conclusion,' said the doctor, 'was this on all the tests: he is a vulnerable individual and of limited intelligence and coping resources. When faced with a demanding situation I think he would be particularly at risk of giving inaccurate information.'

…. He agreed that there was no specific mental illness from which the defendant suffered …. He is not mentally ill. His behaviour suffers from limitations and is outside the normal range. …" [our emphasis].

That summary, which, it is accepted, is an accurate one of the Professor's evidence, would clearly have been in the jury's mind in relation to the appellant's confession in court, upon which the prosecution also relied.

Professor Gudjonsson has recently examined the appellant again and has looked at further documentation, including transcripts of all the interviews. In a report of 28^th April 2002 he has stated that:

(1) his re-examination has "reinforced and strengthened" his conclusions about the appellant's psychological vulnerability and possible unreliability of his confessions in 1985;

(2) he is confident that the appellant now suffers from a mild mental handicap in the form of a learning disability bringing him within section 77 of PACE, but which would not necessarily have been apparent to the interviewing officers as a mental handicap or disorder in 1985;

(3) he suspects that the appellant's social functioning is also significantly impaired;

(4) although he had thought in 1986 that the appellant's mental handicap "fell in the borderline range", he thinks that if he were now interviewed by the police under PACE, he would require the services of an appropriate adult because his handicap would put him at the risk of unreliable evidence;

(5) he remains abnormally suggestible and compliant, if anything less able to cope with interrogative pressure than before; a condition which would have been exacerbated in the 1985 interviews by the police questions as to his sexuality;

(6) he would have been poorly equipped in 1985 to cope with the sustained pressure of questioning over ten interviews;

(7) he would have greatly benefited from the presence of an appropriate adult and a solicitor at all the interviews and that Mrs. Ash's presence at the last was an insufficient safeguard; and

(8) in the light of those conclusions he has serious reservations about the reliability of the appellant's confessions

Whilst Professor Gudjonsson's views as expressed in this most recent report are likely to be capable of belief, in the sense that they are the views of an expert honestly held, it is necessary to consider whether it is fresh in the sense of adding anything significant to his evidence at the trial or, more precisely, given the jury's rejection of that evidence, whether it would afford any ground for allowing the appeal. Mr. Fisher has acknowledged that the new report does in fact mention a number of new matters. However, he did not accept that, looked at individually or cumulatively, they could, if they had been before the jury, have had any material impact on their decision, having regard to the Professor's already emphatic warning of the need for caution. The new matters are: first, the homosexuality of the appellant, the fact that at the trial he had not read all the interview transcripts and so did not know about the possible "deleterious" effect of the questioning of the appellant about A, an effect about which there is now more awareness; second that the appellant suffers from mental handicap in the form of a learning disability; and third, the need to treat the appellant's apparent special knowledge in the interviews with caution.

However, as Mr. Fisher submitted, the Professor's conclusions and the main thrust of them remain very much the same as those in his unchallenged evidence at the trial. They are, in his own terms, a reinforcement and strengthening of his conclusions on the importance of the appellant's psychological vulnerability and on the possible unreliability of his interview confessions. As appears from the Judge's summary of his evidence, it must have been plain to the jury that he was urging great caution on them before they accepted the reliability of the confessions. The closeness of his view then and now is well demonstrated, as Mr. Fisher has pointed out, by juxtaposing his conclusions in his first report in 1986 and in his latest report of April 2002:

"[1986 report] The findings consistently indicate that Mr. Foster may have been exceptionally vulnerable during the lengthy police interviews and consequently giving distorted or false testimony. His alleged admissions should therefore be interpreted with great caution and ideally require independent corroboration"

"[2002 report] In view of the above, I have serious reservations about the reliability of his self-incriminating admissions to the police."

In our view, to the extent that there is anything new in Professor Gudjonsson' recent report, it is more a matter of emphasis bred of hindsight, and influenced in large part by an examination of the appellant many years after the event. The decision whether to receive such evidence, as Lord Hobhouse has cautioned in Pendleton, at para. 46, is likely to be a risky exercise and to require a more critical approach than in the case of other forms of evidence relied on to render a conviction unsafe.

As to whether there is a reasonable explanation for failure to adduce at trial whatever new is to be found in the report, we consider Mr. Fitzgerald's submissions to be tenuous. They are that, since the trial, there have been significant advances in psychological knowledge concerning false confessions, particularly as to the dangers of relying on a defendant's "special knowledge" of the crime as evidence of his or her guilt, and also as to the instrumentality of questioning about sexuality in eliciting false confessions. He also relied on the opportunity that the Professor has now had to consider more documents, in particular, transcripts of all the previous interviews, than he did before the trial.

However, as we have said, there was no failure to adduce relevant evidence from the Professor at the trial. As Mr. Fisher has put it, the present application is in effect for him to give the same evidence again in a more focused and forceful manner. This is quite different from the case of Ashley-King, where the new psychological evidence going to the appellant's abnormally high degree of suggestibility and compliance went well beyond the psychiatric and psychological evidence at the trial, and from the case of Pendleton, where no psychological evidence at all had been called at trial. And, as to the Professor's reliance on his greater awareness now of the appellant's suggestibility at the time, from reading transcripts of earlier interviews and other documents, we note that he was present in court throughout the trial and so had ample opportunity to assess then the effect, if any, as he saw it of the officers' conduct of the early interviews on the later ones in which the appellant admitted his guilt.

Dr. Angus Campbell

Although, as we have said, Dr. Campbell prepared a psychiatric report for the appellant's legal representatives at the trial and they did not call him as a witness, Mr. Fitzgerald seeks to rely on the report as fresh evidence "to bolster" the evidence of Professor Gudjonsson. The key comments and conclusions in the report were that:

(1) the appellant had been very embarrassed at routine questions about his sexual history;

(2) the appellant had told him that the police had put pressure on him, including questions about homosexual activity, which had embarrassed him;

(3) he would expect the appellant to have become "embarrassed, downtrodden, confused, and confusing under strong prolonged interrogation"; and

(4) the appellant was an "immature young man of borderline subnormal intelligence with whom the greatest care would have needed to be taken in interviewing, because of his confusability, suggestibility and relatively poor understanding of complex and prolonged questioning".

In our view, this evidence would have added little if anything to the trial evidence of Professor Gudjonsson so as to be a candidate for fresh evidence on this appeal. Professor Gudjonsson appears to have been of the same view. When interviewed by the CCRC, he said that he did not think that the Dr. would have added anything material to the body of the evidence. This was also the assessment of Mr. Burke, whose recollection in evidence was that the Professor's evidence had been unchallenged, that he had left the witness box "unscathed", and that, as the leading psychologist in the field, his evidence did not need such support. Accordingly, we do not in the exercise of our discretion receive such evidence under section 23 since it would not afford any ground for allowing the appeal.

The prosecution's failure to disclose material as to the appellant's vulnerability

There was no evidence at the trial suggesting that the interviewing police officers knew or suspected or believed that the appellant might have been mentally handicapped or disordered so as to require the attendance of an independent person or appropriate adult at any of their interviews of him. In response to the appellant's suggestions to the contrary in this appeal, DI Mellor who, it will be remembered, was one of the officers conducting the critical interviews from the 7^th on when the appellant confessed to the murder, made a written statement in which he has asserted that he "decided that he was not mentally handicapped" and that he had only arranged for Mrs Ash to be present at the 10^th interview because the appellant had requested the attendance of a social worker. Mr. Fitzgerald sought to contradict that assertion by inviting the Court to receive as fresh evidence two police action notes possibly not disclosed to the defence before or at the trial describing the appellant and his family as "subnormal". This information, he submitted, went to the appellant's vulnerability in interview and could have formed the basis of a defence application to exclude the evidence of the interviews due to the absence of "an appropriate adult". He added that it would also have undermined the police evidence of their unawareness of the appellant's vulnerability or of the need for the presence of an "appropriate adult".

Those and other arguments on which Mr. Fitzgerald sought to rely in support of this contention were, as Mr. Fisher demonstrated in argument, without substance. First, such views were not borne out by the available medical evidence at the time, which was that the appellant was not mentally handicapped. Second, it is interviewing officers' appreciation of the suspect's mental state to which the rules past and present are directed, and there is no evidence that the contents of those notes were ever communicated to the interviewing officers. Third, as Mr. Fisher demonstrated in an "audit trail" of the action notes that he conducted for the Court, there is a real risk of them having been a late whisper in a trail of "Chinese whispers".

According to Mr. Armstrong, those notes may not have been disclosed to him before trial. If they were, he suggested that, in the wealth of material he had to consider at the time, he probably would not have noticed their possible significance. But, regardless of whether that would constitute a reasonable explanation for the defence not adducing them at trial, we consider, for the reasons advanced by Mr. Fisher that they would not materially add to the appellant's case on the issues whether the Judge should have excluded the confessions and/or should have given a section 77 warning to the jury.

The prosecution's failure to disclose material and defence counsel's failure to adduce evidence in favour of the appellant, both on the issue of special knowledge

There were two matters under this head in respect of which Mr. Fitzgerald invited the Court to receive fresh evidence, both going to the issue of the appellant's special knowledge and hence to the reliability of the appellant's confessions in interview.

The first concerned a police "action" note of an interview of a man on 18^th February 1985 – four days after the murder - that he had overheard someone in a disco say that Mr. Cheatham had been strangled with a wire flex.

The second was of the failure of defence counsel at the trial to adduce or seek an admission from the prosecution in respect of a confession made by a Mr. James McGrath in May 1985, three months after the murder, in which he had given a detailed account of the killing, including having put a "cord or wire" around Mr. Cheatham's neck. Mr. McGrath had subsequently retracted that confession, but Mr. Fitzgerald submitted that evidence of the confession would have been admissible, not as to its truth, but in order to show that the use of the flex was not a matter of which the appellant could be said to have had special knowledge.

The papers before us show that this point was considered by junior defence counsel, Mr. Foster, well before the trial but not taken any further, possibly because Mr. McGrath could not be located and because it was wrongly considered that his statement of confession would be hearsay, even on the issue of special knowledge. However, even if Mr. Burke and Mr. Foster should have sought to introduce this evidence on the issue of special knowledge, we doubt whether it would have added much to the strong impression in the trial of which Mr. Burke told us in evidence that some, at least, of the detail of the murder had got out and had quickly become local gossip. Of all the detail, the use of the razor flex is likely to have been among the most talked about.

The appellant's special knowledge

This may be a good moment to consider the strength of the prosecution case as a whole on the issue of special knowledge, since it was, as we have said, an important consideration for the jury as to the reliability of the appellant's confessions, given their accuracy as to the manner and circumstances of the killing. In addition to the two police action notes as possible fresh evidence to be put against the prosecution reliance on the appellant's special knowledge, Mr. Fitzgerald relied heavily on the likelihood that there would have been a good deal of local gossip. In particular, there were the two neighbours who had found Mr. Cheatham's body in the house on the day after the murder. They would have had ample opportunity to take in the detail of the murder scene and were likely to have talked about it in the neighbourhood, a point made by Mr. Burke at the trial and referred to by the Judge in his summing-up. Mr. Fitzgerald had also sought to rely on this issue on the proposed fresh evidence of Mr. Mylan, in his suggestion that the police "fed" the appellant the information about the razor flex in interview, evidence which, for the reasons we have given, we have declined to receive.

Although the razor flex is likely to have been a memorable matter in any circulating gossip about the murder, the appellant's account in his confessions amounted to a remarkably accurate description of many other details of the murder scene. Given what is known of his low intelligence, such recall might have been expected to come more readily from what he had seen for himself than from what he had been told by someone else. We have summarised, in paragraph 23 above, the considerable details that he volunteered and upon which the prosecution relied as special knowledge and refer to some of them again here. First, there was the plan that the appellant drew of the murder scene, which, though rough and ready, accorded with the general layout and type of furniture and the relationship to it and to the room of the body, a room which, he had claimed in an earlier interview, he had never entered. Second, in his mention of the cable, he may, as we have said, have mentioned something that had become common gossip. But there is no suggestion that his mention of the white plug, that he pulled off the flex and that was later found close by on the floor, had become or was likely to have become common gossip. Third, there was his account of taking the wallet and the finding of a wallet in his bedroom coupled with the opening of the bank account on the day, albeit that there could have been some conflict of evidence as to whether it could have belonged to Mr. Cheatham. Fourth, were his correct answers to questions specifically directed by the questioning officers to test the reliability of his confession as he gave it: that the television had been on – it had been and was still on the following morning when Mr. Cheatham's body was discovered; whether there had been any flowers on the table – he correctly said that there had not been; whether he had kicked Mr. Cheatham – he said that he had not done so and there were no injuries on the body consistent with it having been kicked. When considered cumulatively, this evidence seems to us powerful support for the reliability of the confessions, even if allowance is made for some of the matters, in particular, the use of the razor flex, having become common gossip. To rehearse accurately such a body of detail in order falsely to convince the interviewing officers of the truth of his confession would, it seems to us, have required levels of cunning and recollection of what others had told him beyond his ability.

The issues as to exclusion or potential unreliability of the confession evidence

Given our rulings declining to receive as fresh evidence for the purpose of section 23 of the 1968 Act any of the new evidence or material on which the appellant has primarily sought to rest his main grounds of appeal, the premise upon which Mr. Fitzgerald based much of his argument on those grounds has gone. However, given his cumulative reliance on all his complaints including the other grounds of appeal and his general contention that the conviction is unsafe, we feel that we should respond to his detailed submissions on the law and on the general justice of the case.

Oppression – section 76

Mr. Fitzgerald's first submission was that the police officers had conducted the interviews in such an unfair, misleading and oppressive manner that the Judge should have excluded them under section 76 of PACE.

We should say straightaway that, even if we had received as fresh evidence all or some of evidence that we heard or received de bene esse, there would have been no evidential basis upon which it could be said that the officers had been violent or otherwise oppressive or unfair in their questioning of the appellant. All the officers denied any such conduct and the appellant withdrew any allegations of that sort in the course of his evidence. As to his initial allegations of physical violence, not only did he withdraw them, but also the jury cannot be taken to have accepted them and Mr. Fitzgerald indicated in argument that he could not ask the Court to do so. As to the other suggestions of oppression, there is no evidence of conduct of the sort approaching that which prompted the Court to intervene under section 76(2) in R. v. Paris (1993) 97 Cr App R 99, to which Mr. Fitzgerald referred the Court.

The nearest that Mr. Fitzgerald could get to a complaint of this sort was in relation to the questioning by DI Mellor and DC Wilson in the second interview on 7^th March 1985, (the sixth overall) about the appellant's relationship with A, a matter that the appellant said, in his evidence to the jury, had upset him, and of which the Judge reminded the jury in his summing-up. It is clear from the Judge's mention of this questioning in his summing-up and from Mr. Burke's evidence to the Court that it was at the request of the defence that this evidence was put before the jury. Mr. Burke wanted to, and did rely, on it to suggest a build-up of pressure on the appellant. However, as to the police motivation for it, the interview, as it developed, shows that the two officers may have had in mind at that stage, as DI Mellor said in evidence at the trial, the possibility of a triangular homosexual relationship between A, the appellant and the murdered man, a matter of which the Judge also reminded the jury. It is true that DS Butler, who was not involved in the interviewing on that day but had put similar matters to the appellant in one of the interviews two days earlier on the 5^th March, disclaimed any such understanding. However, in the light of certain information in police documentation that Mr. Fisher has put before the Court, we are not surprised at DI Mellor's and DC Wilson's exploration of this line of enquiry. In the circumstances, we could not possibly say, if we had been in the position of the Judge and applying today's standards - and even if we had known of the recently expressed views of Professor Gudjonsson on the matter, that we would have regarded it as oppressive conduct requiring us to exclude the confessions under section 76. We add that the possibility of this line of questioning having had had an upsetting or unsettling effect on the appellant was, as we have said, put clearly before the jury in evidence and in the Judge's reminders of it in his summing-up. It is a suggestion, whether well-founded or not, that would be likely to cause most people embarrassment or other upset if put to them in such circumstances.

Discretionary exclusion under section 78 – no solicitor and no "appropriate adult"

Mr. Fitzgerald also submitted, in the alternative, that the police conduct of the interviews and the mental state of the appellant were such that if we had been in the position of the Judge, applying either the standards of the day or those of today, we should and would have exercised our discretion under section 78 to exclude the evidence of the appellant's confessions as unfair to him. As we understood this submission, Mr. Fitzgerald intended that it, like that under section 76, should depend largely but not entirely on the outcome of his applications to the Court to receive fresh evidence. There was also some overlap in complaints as between the two provisions. As to the complaint of oppressive conduct, for the reasons we have given in relation to the submission under section 76, we see no basis on which we should or would, if in the position of the Judge, have excluded the confessions, with or without the evidence on which the appellant sought to rely as fresh evidence as to his vulnerability and suggestibility. As we have indicated, all that was left of this allegation was the complaint about the questioning about A which, however unsettling it might have been to him, appeared to be a legitimate line of enquiry at the time and the implication of which paled into insignificance against the charge of murder that he was facing. However, we should deal more fully under this head with his other two main complaints, namely that the police had not advised him of his right to have a solicitor present at the interviews and that they had not arranged for the attendance of an appropriate adult throughout them or, even in the form of Mrs Ash at the tenth interview.

No solicitor

First as to the attendance of a solicitor, Mr. Fitzgerald maintained that whether the matter is considered under the Judges' Rules and accompanying Directions, which were applicable at the time of the interviews, or according to the requirements of PACE and Code C, in force at the time of the trial, the police were in breach of the procedures in failing adequately to advise him of his right to the presence of a solicitor. He maintains that for such breach a proper exercise of the Court's discretion under section 78 would almost always be to exclude the confession evidence (see e.g. R v. Samuel (1988) 87 Cr App R 232 and R. v. Absolam (1989) 88 Cr App R 332, and that, as this prosecution depended so heavily on it, the conviction must be unsafe.

We deal first with the position under the Judges' Rules. Rule (c) provided simply "[t]hat every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor …". And paragraph 7 of the accompanying Directions provided that he should be "allowed" to speak on the telephone to a solicitor if he wished and, when in custody, to be informed orally and by convenient and conspicuously placed notices, and his attention drawn to them, of any such right. Those provisions, in particular, that allowing him to speak to a solicitor if he wished, have been held to pre-suppose a request for contact with a solicitor, not to impose an obligation on an officer before questioning a suspect to inform him of his right to do so; see R. v. Stephen King [1980] Crim LR 40. Mr. Fisher also drew attention to section 62 of the Criminal Law Act 1977, then in force, entitling a person arrested, without delay, to an intimation of his arrest and where he is being held "to one person reasonably named by him". Here, the appellant asked that his mother should be so notified, and the police did that. Thus, on the plain wording of the Judges' Rules, it was only if a suspect asked for contact with a solicitor before questioning that it was a breach of them to continue before he had had an opportunity to do so; see e.g. R. v. Allen & Ors [1977] Crim LR 163; and R. v. Samuel. On the unchallenged prosecution evidence before the jury, contradicted only by the appellant in evidence as to the tenth interview, he had not asked for the attendance of a solicitor. On the contrary, on the unchallenged prosecution evidence, he had three times declined the offer of the police to call one, twice at the end of the sixth interview and once at the end of the ninth interview.

However, before moving to the PACE part of Mr. Fitzgerald's submissions, we should mention a further and alternative, submission of his under the Judges' Rules. He sought to rely, by way of fresh evidence, on Mr. Armstrong's written instruction to trial counsel that the appellant had specifically requested and been denied access to a solicitor. It is not clear how, in the form sought, such evidence would have been admissible, or, even if admissible, how it would have been, on the appellant's part, credible or how it could have materially affected the outcome of the appeal. The police evidence as to the offer of a solicitor in the sixth and the ninth interviews was not, as we have said, challenged by Mr. Burke. Mr. Burke told us that, in not challenging that evidence, he acted in accordance with the appellant's instructions to him, which were that he had told the police that he did not want a solicitor. However, as we have indicated, there is nothing new about the suggestion - the appellant, despite his oral instructions to the contrary to Mr. Burke, had gone on to give similar evidence to the jury, who, in the light of Mrs. Ash's evidence must be taken to have considered and rejected it.

On that state of the evidence, there was no basis upon which the Judge could properly have ruled the confessions inadmissible for breach of the Judges' Rules. And, on the evidence, including the issue raised by the appellant in the witness box, it was open to the jury to judge for themselves what, if any, effect the absence of a solicitor at any stage had on the reliability of the confessions. Given our refusal to receive, as fresh evidence, any of the new matters on which the appellant has sought to rely, we do not have to consider whether, if it had been available at trial, the jury might have acquitted on the strength of it.

However, Mr. Fitzgerald submitted that the fact that the appellant did not request, or may not have requested, a solicitor was no answer if he had not been informed at an early stage of his right to one. Such an entitlement, he submitted, was fundamental, and not just a feature of a written constitution (as in A-G of Trinidad and Tobago v. Whiteman [1991] 2 AC 240, 247F) or dependent on an express statutory provision or rule to that effect. He took support for this broad proposition from R. v. Samuel (1988) 87 Cr App R 232, at 245 and Thornhill v. A-G of Trinidad and Tobago [1981] AC 61, PC. Such an argument, drawn as it is from PACE and developing jurisprudence since its introduction, is better considered in the context of the standards of today alongside with well established principles for the exercise of the Court's discretion under section 78 governing exclusion of the evidence.

Under section 58(1) of PACE and Code C, paras. 3.1, 6 and 11, a person held in custody is entitled, if he so requests, to consult a solicitor privately at any time, to be told on arrest and when in detention of his rights, including access to legal advice, and when detained and under interview to be reminded of his entitlement to free legal advice. Mr. Fitzgerald submitted that these provisions and the modern principles that they embodied were breached in that the appellant was not advised of his right to a solicitor until the ninth interview, shortly before he made his written statement of confession in the presence of Mrs. Ash in the tenth. He discounts the two offers made at the end of the sixth interview because they were made in the context of questioning of the appellant about his relationship with A.

Mr. Fitzgerald submitted that, though section 58 and Code C were not in force at the time of the interviews, they were known to be coming into force and, as a matter of fairness and justice, should have been observed in the appellant's case. The effect of the police not having done so, he maintained, is to render the conviction unsafe.

Adopting the Ashley King approach, we consider it right to take into account PACE and any other present day standards as to the appellant's entitlement to a solicitor throughout the various interviews giving rise to his confessions in the last four of them. Also adopting the Canale approach, we allow for the possibility that the early breach, if there was one, of PACE, to offer the appellant a solicitor would have been capable of tainting the later interviews following such an offer and the appellant's refusal of it. We also consider that there is some force in Mr. Fitzgerald's submission that the two offers at the end of the sixth interview, in the context in which they were made, might not prevent such tainting of the confessions that emerged in the succeeding interviews. However, it does not follow that the absence of a reminder at an earlier stage in the interviewing process, as required by PACE and Code C, would require as a proper exercise of discretion under section 78 the exclusion of the interview confessions. The main and well established principle governing such a breach of current rules - if breach there was - is whether it was sufficiently "significant and substantial" to require exclusion; see R v. Absolam and R. v. Delaney (1989) 88 Cr App R 338.

We have no hesitation is concluding that we would not have exercised our discretion so as to exclude the evidence of the confessions for want of a solicitor's presence at any of the interviews. We bear in mind that the wrongful refusal of a solicitor at an early stage of a series of interviews could taint confessions made at a later stage of the series after a suspect has been offered and has refused a solicitor. We also bear in mind that that could be a particular risk where the suspect is or may be for some reason or other vulnerable or suggestible. However, we consider that, on all the material before the jury, including the well-canvassed issues as to the reliability or otherwise of the confessions, their reliability was essentially a matter for them, not for the Judge in this instance as an exercise of discretion to exclude.

For the following reasons we consider that, on all the material and issues on it canvassed at the trial, the jury's verdict could not possibly be regarded as unsafe for want of the presence of a solicitor at all or any of the interviews. The appellant had steadfastly maintained his innocence in the first six interviews despite the absence of a solicitor or any independent persons. Whatever the context of the police offers at the end of the sixth interview, he can have been in no doubt that if he had asked for a solicitor at that stage the police would have arranged for the attendance of one. The police did not leave his subsequent confessions in the seventh, eighth and ninth interviews without taking the wise precaution of inviting him to confirm them in writing, asking him again if he wanted a solicitor to attend, and responding to his refusal and request for the attendance of a social worker instead by arranging for the attendance of Mrs. Ash. On her evidence, which her purported fresh evidence would only have confirmed, the interview at which he gave the written statement of confession was conducted with meticulous fairness and care. He followed those confessions with a further admission when charged and he repeated it in front of the jury, albeit only briefly. As we have said, the jury also had an important tool for verifying his confession in the detailed account that he gave of it, indicating, if they accepted the prosecution's arguments, considerable knowledge to which only the murderer was likely to have been privy.

No "appropriate adult"

Mr. Fitzgerald's third complaint under this ground of appeal, one of unfairness because the police did not arrange for the attendance of "an appropriate adult", is misconceived in law and not factually justified on the evidence at the trial or that sought to be adduced as fresh evidence. The legal requirement at the time of the interviews under paragraph 4A of the Administrative Directions accompanying the Judges' Rules was that a police officer should only interview a person who appeared to have a "mental handicap", such to raise a doubt whether he could understand the questions to be put to him, in the presence of his parent or person responsible for him or some other independent person, for example a social worker. Mr. Fitzgerald submitted that the police should in fairness and justice have also had regard to the shortly to be introduced provisions in Code C of PACE requiring the attendance of "an appropriate adult" where a police officer suspects or is told in good faith that the person he intends to interview is "mentally disordered or mentally handicapped". An "appropriate adult" for this purpose is defined in Code C, Annex E, para. C2 as:

"(a) a relative, guardian or some other person responsible for his care or custody;

"(b) someone who has experience of dealing with mentally disordered or mentally handicapped people but is not a police officer or employed by the police;

(c) failing either of the above, some other responsible adult aged 18 or over who is not a police officer or employed by the police."

Mr. Fitzgerald maintained in relation to both procedural codes that the interviewing officers knew or should have known or suspected that the appellant was "mentally handicapped" so as to require them to provide an independent person or an appropriate adult as the case may be during the first nine interviews. He acknowledged that Mrs. Ash would have qualified as an independent person under the Judges' Rules for the purpose of the tenth interview in which the appellant provided the written confession statement. But he maintained, again in reliance on the Canale reasoning, that that confession was tainted by the absence of such a person or an appropriate adult at the previous interviews and also that Mrs. Ash was not, in any event, an appropriate adult as defined in Code C, Annex E, para. C2. by reason of her inexperience. He referred to the important duties of an appropriate adult as discussed by Bracewell J, giving the judgment of the Court in R. v. Aspinall [1992] 2 Cr App R 115, a case in which the police, who knew that the accused had a mental illness, had interviewed him on his own.

As to the appellant's mental state at the time of the interviews, we should emphasise first that there was no evidence before the jury that the appellant was "mentally handicapped" so as to require the attendance of an appropriate adult at any of the interviews. Professor Gudjonsson did not say so; his evidence was that, though the appellant was of limited intelligence, vulnerable and abnormally suggestible, he was not mentally ill. There was no submission or other evidence put before the jury to suggest that the appellant was "mentally handicapped" within the meaning of the Rules and Directions or "mentally disordered or mentally handicapped" within PACE and Code C.

There was no evidence at the trial suggesting that the interviewing police officers knew or suspected or believed that the appellant might have been mentally handicapped or disordered so as to require the attendance of an independent person or appropriate adult at any of their interviews of him. As we have mentioned, Mr. Fitzgerald sought to contradict that assertion by inviting the Court to receive as fresh evidence the two police action notes describing the appellant and his family as "subnormal", a request which, for the reasons we have given, we have declined. It should be remembered too that Mrs. Ash's presence at the tenth interview was not because the police had belatedly woken up to the need for the attendance of an appropriate adult or otherwise independent person, but because the appellant had asked for the attendance of a social worker. And, for what it is worth, despite Mrs Ash's recently expressed views of her inexperience at the time, we are in no doubt that, if it had been required, she would have qualified as an "independent person" within the paragraph 4A of the Administrative Directions accompanying the Judges' Rules and as an "appropriate adult" within paragraph C2 (c) of Annex E to Code C of PACE. Nor can it be said that her role in the tenth interview was in any way compromised by what had happened in the earlier interviews, since, as we have found, there had been no earlier misconduct, whether wilful or technical, resulting in breaches of the Judges' Rules or breaches of Code C, significant or substantial or otherwise.

In conclusion on this ground of appeal, we are satisfied that there is no basis on which we could conclude, on the evidence tendered, or even on the new material that Mr. Fitzgerald unsuccessfully asked the Court to receive as fresh evidence, that, considered individually or cumulatively:

• the police officers conducted the interviews oppressively or otherwise unfairly;

• the absence of a solicitor from any of the interviews was a breach of the standards of the day or a breach of today's PACE standards, significant or substantial or otherwise, or was otherwise unfair; or

• that the mental state of the appellant at the time amounted to an actual or perceived mental handicap imposing on the interviewing police officers by either of those standards an obligation to arrange the attendance of an independent person or appropriate adult at any of the interviews.

Accordingly, it is our view that there was no basis on which the Judge should have considered exclusion of the evidence under section 76 of PACE or of the exercise of discretion whether to do so under section 78.

The Judge's misdirection as to Professor Gudjonsson's evidence

Mr. Fitzgerald's main complaint under this ground of appeal was that the Judge, in two passages in his summing-up wrongly undermined Professor Gudjonsson's evidence of the vulnerability and suggestibility of the appellant. The first was at page 14 when he began to remind the jury of the evidence as to the interviews, starting with one of the early interviews by Detective Sergeants Layfield and Butler:

"He was asked if he remembered Valentine's Day and he said these words, 'I should do with you lot keep asking about it'. This is the young man who is compliant and easily suggestible and so forth – 'I should do with you lot keep asking about it'. He was asked what he meant by that comment and he said, 'Coppers keep coming round with forms to fill in'."

The second was at the end of the Judge's summary of Professor Gudjonsson's evidence, which we have set out in paragraph 53 of this judgment:

"Well, members of the jury, you have seen him [i.e. the appellant] in the witness box and ultimately it is for you to decide, not for, with respect to him, Dr. Goode Jonsson [sic] or anybody else, it is for you. He is only there to help you if his evidence does help you."

As to the first of those two passages Mr. Fitzgerald submitted that it was unfair of the Judge to single out that one response of the appellant, seemingly contradictory of Professor Gudjonsson's assessment of the appellant, and not to mention others confirmatory of it. As to the comment that we have emphasised at the end of the second passage, he said that its effect was wrongly to deprive the jury of the benefit of Professor Gudjonsson's expert evidence by demoting the issue to one of common sense. He maintained that the effect of what he described as remarks dismissive of Professor Gudjonsson's evidence was highly prejudicial to the appellant on the core issue in the case, the reliability of the confessions. He relied on observations of Farquharson LJ giving the judgment of this Court in R. v. Raghip 9^th December 1991 (unreported), at page 26, rejecting the "judge for yourself" approach as a justification for excluding or disregarding expert psychological evidence in such cases. See also R v. Everett [1988] Crim LR 826.

However, this is not a case in which the Judge either excluded the expert evidence (as in R. v. Raghip) or directed them to disregard it. As the full passage that we have set out in paragraph 53 above demonstrates, he gave them a full account of it, adding only, as he was entitled to do, that the decision was theirs on all the evidence before them, including that of the Professor, and what they had seen and heard of the appellant. He was simply saying what judges are entitled to, and should, remind a jury in all cases in which expert evidence is called by a party on a matter in issue, that they are not bound by the expert's opinion and that it is for them to decide; see e.g. R. v. Stockwell (1993) 97 Cr App R 260, at 261 and 265. The fact that his comment went to an issue critical to the jury determination of guilt or otherwise – the reliability of the appellant's confessions – was no reason not to make it. On the contrary, it was a reason to make it, especially in relation to evidence of a psychologist which, by its very nature and however expert, has in matters such as suggestibility and credibility, an overlap with the everyday knowledge and appreciation of juries; see again R. v. Pendleton, per Lord Hobhouse at para. 42.

In our view, the terms in which the Judge commented could not reasonably be said to have undermined the effect of the Professor's evidence or to have imperilled the safety of the resulting conviction. Accordingly, we reject this ground of appeal. In doing so, we take the opportunity to observe that such complaints, often seemingly thrown in for good measure as a make-weight to more substantial grounds in appeals to this Court, sit ill with criminal practitioners' tradition of high regard for our system of trial by judge and jury. On the one hand, juries are eulogised for their ability to understand and bring valuable experience and robust common sense to their determination of issues before them. On the other hand, through the medium of challenges to conviction of which these are all too typical, they are seemingly regarded as fragile bodies, all too readily blown off course by the slightest zephyr, whether in the form of judicial comment or otherwise. Those considering such complaints when drafting grounds of appeal should, consistently with their belief in the strength of our system of trial by judge and jury, give juries more credit than they often do in practice for their grasp of the evidence and the issues on which it bears and for their sturdy independence in determination of them.

The Judge's failure to give a section 77 warning to the jury or to otherwise caution them about the danger of convicting in reliance on the appellant's confessions

Mr. Fitzgerald's primary proposition under this ground of appeal was that the Judge was in breach of section 77 of PACE for having wrongly failed to direct the jury of "the special need for caution" before convicting in reliance on the appellant's confessions. He maintained that the case fitted the criteria in that provision in that it depended wholly or substantially on those confessions, the appellant was "mentally handicapped" and the confession was not made in the presence of "an independent person". We say that that was Mr. Fitzgerald's primary submission because, although he made it on the incorrect (given our rulings) premise that he could draw support for it from the fresh evidence that he sought to adduce, he suggested that, regardless of such evidence or compliance with the precise requirements of section 77, fairness in the circumstances of the case required the Judge to warn the jury clearly of the danger of relying on the appellant's confessions, and the Judge did not do that.

There can be no dispute that the prosecution case fitted the first of the section 77 requirements. As we have already said, it clearly did depend wholly or substantially on the confessions. However, it did not satisfy the other two requirements.

As to the appellant's mental state, Mr. Fitzgerald referred to the definition of "mentally handicapped" in section 77(3) as:

"a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning"

He acknowledged that, on Professor Gudjonsson's evidence at the trial, the appellant was not mentally handicapped, though the Professor had described him, as the Judge reminded the jury, as "on the borderline of mental defective". It follows, given our refusal to receive fresh evidence from Professor Gudjonsson, that the first criterion of section 77 is not satisfied. Even if we had received that evidence, which on this aspect turns principally on the Professor's assessment of the appellant today, we would not, putting ourselves in the position of the Judge at the time, have regarded this requirement as satisfied.

As to the requirement of the presence of "an independent person", Mr. Fitzgerald submitted, as he had done in respect of his arguments under section 78 of PACE, that, although Mrs. Ash's presence at the last interview at which the appellant made his written statement of confession may have qualified, her protective value as such was tainted by the earlier breaches giving rise to confessions of which the last was merely a supposed confirmation, and was qualified by her inexperience. In the light of our rulings that there were no such earlier breaches, that argument is no longer available to the appellant. Mr. Fitzgerald also relied in the alternative under this requirement, on Mrs. Ash's recently expressed opinion that she had not qualified as an "appropriate adult" under Code C for the purpose of consideration under sections 76 or 78. He acknowledged that the test here, in section 77(3), is different, simply that of an "independent person", namely someone who is "not a police officer or a person employed for, or engaged on, police purposes". But he said that, having regard to the known dangers of false confessions at the time of the trial giving rise to the introduction of section 77, the Judge should have given a similar warning to that required by that provision, taking as the section 77 model the words of this Court in R v. Bailey [1995] 2 Cr App R 263, at 283E-G, following its decision shortly before in R. v. Campbell [1995] 1 Cr App R 522, namely:

"… Briefly, the judge has to give a warning that the jury should approach such confessions with care and would be wise to use the phrase 'special need for caution'. Second, the judge must explain that the need arises because of the circumstances referred to in … section 77. Third, the judge should explain why a confession from a mentally handicapped person may be unreliable, tailoring that explanation to the evidence in the particular case and bearing in mind the words of paragraph C:E3 of Annex E of code C of the Codes of Practice for the Detention, Treatment and Questioning of Persons by Police Officers. Finally, the judge should explain that the function of the appropriate adult is designed to minimise the risk of the accused giving unreliable information by seeing that the interview is conducted properly and fairly and perhaps assisting in the communication between the confessor and the person receiving the confession."

.

Mr. Fisher submitted that neither section 77, nor the extension of it that Mr. Fitzgerald urged, was engaged because: first, on the evidence of Professor Gudjonsson at the trial, the appellant was "a borderline mental defective" and not mentally ill; and second, the critical tenth interview was conducted in the presence of an independent person, Mrs. Ash. As to Mr. Fitzgerald's argument that the conduct of the interview and the resultant written confession were tainted by all that had gone before, Mr. Fisher maintained, as we have found, that nothing that had gone before, amounted to unfairness so as cast doubt on the reliability of the oral confessions made before or as confirmed in writing in Mrs. Ash's presence.

We should add that this complaint was considered by the Court of Appeal in 1987 in dismissing the appellant's application for leave to appeal against conviction. Farquharson J., giving the judgment of the Court, referred to the interviews on 7^th and 8^th March in which the appellant had admitted his guilt and said, at page 3C-E of the transcript:

"Medical evidence was given on behalf of the applicant by Dr. Johnson [sic] who, in summary described the applicant as being on the borderline of mental defective, but not mentally ill. The question of whether the applicant was mentally handicapped within the definition of that term in subsection (3) of section 77 was not investigated. It is also right to say that no warning of the kind that is contemplated by the section was in fact given by the learned Judge.

However it needs to be emphasised that the written confession made by the applicant was indeed made in the presence of an independent person.

Had the case been that the only evidence relied upon by the prosecution of confession was confined to the two police interviews which I have … mentioned, it may well be that this would have constituted a material irregularity. But bearing in mind that a substantial confession in writing made by the accused man was in fact in the presence of the independent social worker, and furthermore that in the course of giving his evidence he did make confession of this crime before the jury, in the judgment of this Court it cannot be said that any material irregularity occurred. Indeed the learned Judge dealt with the medical evidence given by Dr. Johnson in considerable detail. For those reasons this application must be refused."

Of all the grounds of appeal, this one came closest to causing us concern. The Judge gave no warning of the need for special caution under section 77. For the reasons we have given, he was not required to do so. Nor did he say anything approximating to such a warning. Given the dependence of the prosecution case on the reliability of the confessions and the undoubted borderline mental state of the appellant at the time of the interviews, it would have been wise to do so.

It is true, as Mr. Fisher emphasised, that there is support for the reliability of the confession in interview in the appellant's repetition of the confession on being charged and in evidence before the jury. But account must also be taken, as Mr. Fitzgerald urged, of his retraction of the admission in evidence shortly afterwards in re-examination. The question for us is whether, on all the evidence before the jury and having regard to the standards of today as well as at the time of trial, the Judge's omission in this respect renders the conviction unsafe. Might the jury have acquitted if the Judge had given them an express warning of the kind suggested by Mr. Fitzgerald? For the following reasons, we consider that they would not have done so:

(1) The central issue in the case, as must have been obvious to the jury from the cross-examination of the police officers, the evidence of the appellant and of Professor Gudjonnson, the speeches of counsel and the Judge's summing-up, was the reliability of the appellant's confessions given his mental state at the time of interview.

(2) The Judge, in addition to reminding the jury in some detail of Dr. Gudjonsson's assessment of the appellant, highlighted or referred to the issue on a number of occasions in his summing-up, setting the scene in the following early passages at pages 5D-H and 6E-7A:

"… you may know that very often people confess to notorious crimes, in particular to murders and so forth, for reasons of their own because perhaps they are mentally unbalanced in some way. …

When you are considering the admissions made out of Court ….you must not act upon them unless you are satisfied that they are true and genuine and reliable. …

The defence point to the low intelligence of the defendant. You had the evidence yesterday of Dr. Johnson [sic] as to his suggestibility and the other matters of which I shall remind you in due course. … The prosecution say that the answer to Dr. Johnson and his opinions about the suggestibility lies to some extent in the evidence of Mrs. Ash …

Then, turning to the confession made in your presence …., you have the opportunity to judge for yourselves – you had the best possible view of that particular event. …. If you are left in doubt, you acquit the defendant altogether. … "

(3) The whole thrust of Professor Gudjonsson's largely unchallenged evidence as to the appellant's vulnerability and suggestibility in interview was directed solely to the issue of the reliability of the confessions and was also relevant to his further admissions of guilt on being charged and in evidence to the jury.

(4) On the evidence, it was open to the jury to conclude, as they appear to have done, that the police did not conduct the interviews oppressively or otherwise unfairly and that before the appellant started to confess he had been offered and had declined the presence of a solicitor.

(5) On the tenth and critical interview when the appellant confirmed his earlier confessions in writing, he did so in front of an independent person, a social worker of some maturity and experience, in an interview which, on her unchallenged account then and now was conducted with meticulous fairness and care, a consideration that, as we have seen, weighed heavily with this Court in 1987 when refusing leave to appeal.

(6) The appellant's whole case on the confessions to the police officers was that he was highly suggestible. However, the jury had ring-side seats at his confession in cross-examination in the witness box. True, he subsequently retracted that confession, but the jury must be taken to have rejected the retraction.

(7) Although the prosecution could not have succeeded without the confession evidence, there was other strong supportive evidence going to the special knowledge of the appellant, which, as we have said, was powerful confirmation of the reliability of the confessions.

As we are satisfied from all those factors, taken together, that a section 77 type direction would have had no material effect on the outcome of the case, we are satisfied that the absence of one does not render the conviction unsafe, whether considered on its own or together with any of the other grounds of appeal.

Misdirection about Mrs. Patten's evidence

The last of the grounds of appeal is that the Judge misdirected the jury as to the effect of Mrs. Patten's evidence about whom she saw outside Mr. Cheatham's house on the evening of the murder. As Mr. Fitzgerald conceded in argument, this complaint is not central to the appeal and, standing on its own, would not be a ground for declaring the conviction unsafe. However, he urged the Court to consider it cumulatively with the other grounds when finally considering that question.

The Judge reminded the jury of Mrs. Patten's evidence of whom she saw outside Mr. Cheatham's house on the evening of the killing and of her confusion between the names of the appellant and his brother, Derek. He said, at pages 11 and 12 of the summing-up:

"….by the front gate she saw one of the Foster boys. I put it that way because she was not clear as to which. …

She said that she muddles Geoffrey and Derek Foster up, calls one by the name of the other and that sort of thing. Finally, she said in answer to Mr. Burke that she was now saying that it was Derek who she saw. Now, whether by Derek she means Derek or whether by Derek she means this young man, Geoffrey, was never clear because nobody asked her. It is not my duty to ask these matters. Mr Burke submits to you that that means that she is saying it was Derek. She saw the brother of this defendant. You will consider whether that is right or not. What she is really saying is, I do not know which name applies to which, you may think. It is a matter entirely for you.

Well, members of the jury, this is not a case of identification where the witness is positively identifying the defendant. She has never pointed to him and said, that is the man. Bear that in mind, please, but she is saying, for what it is worth, that it was one of them, either Derek or this defendant, and you will bear in mind that in the defendant's confession both he and Derek were at the house though he says only he went inside."

Mr. Fitzgerald maintained that the last sentence of that passage was a misdirection in that it undermined a fundamental piece of identification evidence that had concluded in the identification of the appellant's brother, not the appellant, outside the house. Mr. Fisher replied that the Judge's summary accurately reflected her muddle on the point, namely that, although she ended up by saying that it was Derek whom she had seen, it was not clear whether she meant the person whom she called Derek or was someone other than the defendant in court.

Neither counsel sought to clarify the uncertainty. No doubt each had his own reasons for not doing so. However, the Judge's direction, it seems to us, accurately reflected that untied end. To the extent that, as Mr. Fitzgerald suggests, he may have left the jury with the possibility that it was the appellant, not his brother Derek whom she saw outside the house, it is difficult to know whether it helped or hindered the prosecution's case against him. The prosecution's case, based on the appellant's confession was that Derek was outside the house at the time when he, the appellant, was inside murdering Mr. Cheatham. In our view, the Judge correctly and fairly directed the jury by drawing attention to the uncertainty of Mrs. Patten's evidence in this respect, by directing them that it was a matter for them and by reminding them that Mrs. Patten had never positively identified the man whom she had seen outside Mr. Cheatham's house that evening. There is no merit in this ground.

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Accordingly, we are satisfied that none of the grounds of appeal, whether considered individually or with the others, supports a conclusion that this conviction is unsafe. Nor, standing back and looking at all the evidence and circumstances, and putting aside the technicalities of the law, can we see any other basis for concern about the reliability of the confessions and the jury's verdict. The appeal is therefore dismissed.

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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 >> Foster, R v [2003] EWCA Crim 178 (10 February 2003) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2003/178.html Cite as: [2003] EWCA Crim 178

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 February 2003