REGINA v HAKALA [2002] EWCA Crim 730

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
[2002] EWCA Crim 730Case No Case No: 2000/033/07Z4Venue Royal Courts of Justice, Strand,, London, WC2A 2LL, Tuesday 19th March 2002
Between
REGINAAppellantHAKALARespondent
Before
Lord Justice JudgeMr Justice HolmanMr Justice MackayMark Heywood for the AppellantEdward Rees QC, Peter Weatherby for the RespondentDate 19 March 2002

Lord Justice Judge :

This

[1]is an appeal against conviction by Peter Hakala (the appellant) following a Reference to this Court by the Criminal Cases Review Commission (CCRC).[2]On 9 th December 1986 the appellant was convicted at a re-trial before His Honour Judge Butler QC and a jury of three counts of rape (counts 1, 3 and 4 of the Indictment). These were unanimous, not as the CCRC suggested, and took into account in making the Reference, majority verdicts. At his first trial, which concluded on 30 th July 1986, he was convicted of assault occasioning actual bodily harm (count 2 of the same Indictment) but the jury were unable to agree verdicts on the rape counts.[3]On 16 th January 1987, Judge Butler, sitting at Southwark Crown Court imposed three concurrent sentences of life imprisonment for rape, with a three month sentence of imprisonment for assault occasioning actual bodily harm. The appeal is limited to the convictions of rape.[4]On 25 th March 1988, the Court of Appeal Criminal Division heard and refused a renewed application for leave to appeal against conviction and sentence. The present reference by the CCRC is based on expert evidence, not available at the original trial, said to cast doubt on the reliability of the evidence of the written records of the interviews (second and third interviews) of the appellant by the police in which he was reported to have confessed to the offences. The CCRC directed itself to consider whether, if the results of these new tests had been available at trial, the jury "with the knowledge of that fresh evidence", would necessarily have come to the conclusion that they did.[5]Mr Edward Rees, QC for the appellant, placed the recent decision of the House of Lords, and in particular the speech of Lord Bingham of Cornhill in R v Pendleton (2002) 1WLR72 at the forefront of his legal submissions. The House of Lords was concerned that this court may have addressed the wrong question - the guilt of the appellant - rather than the right one - the safety, or otherwise, of the conviction. Lord Bingham observed that "the question for ...... consideration is whether the conviction is safe and not whether the accused is guilty". We respectfully doubt whether that observation, relied on by Mr Rees, advances the present appeal. Lord Bingham was confirming that, notwithstanding clear evidence of guilt, a conviction may be quashed as unsafe where, for example, it has followed a wholesale subversion of the criminal justice process ( R v Mullen (1999)2CAR143) or where the trial has failed to measure up to the requisite standards of fairness (R v Bentley (2001)1CAR21). On this point, R v Chalkley and Jefferies (1998) 2CAR79, and indeed other decisions of this court, to the contrary effect, are not to be followed.[6]The issue of principle for decision in Pendleton was whether, following the Criminal Appeal Act 1995, in an appeal against conviction based on fresh evidence, the test identified by the House of Lords, in R v Stafford and Luvaglio (1974) AC878 continues to apply. Viscount Dilhorne said:
"while, .....the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question"
. That observation was adopted, either expressly, or in speeches which supported it, by the remaining members of the House.[7]The test was considered, and in the result adopted, or re-adopted, in the context of the 1995 Act, in Pendleton . Lord Bingham said, in terms, at paragraph 21 that "..... the principle laid down in Stafford was, in the opinion of the House, correct." The House was indeed unanimous on this point. Lord Hobhouse, who agreed that the conviction should be quashed, but for different reasons, wholly agreed with Lord Bingham, commenting, at paragraph 38, "....it is not right to attempt to look into the minds of the members of the jury. Their deliberations are secret and their precise and detailed reasoning is not known. For the appellate court to speculate, whether hypothetically or actually, is not appropriate. It is for the Court of Appeal to answer the direct and simply stated question: Do we think that the conviction was unsafe?".[8]Having identified the principle decided in Pendleton, we must examine the further observations by Lord Bingham relied on by Mr Rees. At paragraph 19, Lord Bingham highlighted that this court was not a court of trial or priM decision maker, and could only have "an imperfect and incomplete understanding of the process which lead the jury to convict". This passage reflected his earlier emphasis on the constitutional primacy of the jury in a criminal trial. He pointed out that the Court of Appeal "is entrusted with a power of review to guard against the possibility of injustice but it is a power to be exercised with caution, mindful that the Court of Appeal is not privy to the jury's deliberations and must not intrude into territory which properly belongs to the jury". He also pointed out that the process which led to the conviction was clearer in some cases than in others. As he explained, ".... although the court does not have the jury's reasons, it does have the jury's verdict. From this some inferences may be drawn....if a proper judicial direction has been given, it will ordinarily be safe for the Court of Appeal to infer that the factual ingredients essential to prove guilt have been established against the defendant to the satisfaction of the jury".[9]Lord Bingham accordingly advised, and Mr Rees highlighted, that it will "usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional views by asking whether the evidence, if given at trial, might reasonably have affected the decision of the trial jury to convict". We doubt whether Lord Bingham was in fact enunciating any very novel approach. He was repeating, in different language, perhaps with greater emphasis, a long standing practice of this court, not always, but frequently, to test fresh evidence by asking "what the effect of the new evidence upon the jury at trial might have been". (see Lord Lane CJ in R v Callaghan (1989) CAR40 at 47). Moreover, we note that Lord Bingham's advice in these passages represented the culmination of a paragraph in which he had begun by stating in unequivocal terms that, "it is undesirable that the exercise of this important judgment entrusted to the Court of Appeal ... should be constrained by words not to be found in the statute and that adherence to a particular thought process should be required by judicial decision". In short, decisions, and particular judicial thought processes in other appeals where 'fresh evidence' has been considered (whether the eventual outcome was the upholding or quashing of the conviction) do not create a hurdle or series of hurdles which the appellant, or the Crown, are obliged to surmount.[10]Mr Rees finally emphasised Lord Bingham's observation in paragraph 26 that, "given the primacy of the jury, it must always be a ground for concern if the jury has never considered a potentially important aspect of the case". This appeal, he argued, was such a case, and if so, the appeal could not be dismissed on the basis of any assessment which we might make of Hakala's guilt. We shall examine the facts later in this judgment. We should say at the outset that although we fully appreciate the necessity for "concern", we do not accept that Lord Bingham's words in this passage bear the weight which Mr Rees sought to impose on them. Lord Bingham did not say that in such circumstances the conviction was, or should be regarded as unsafe. We are not surprised. Such an approach would be inconsistent with the language of section 23 itself. As Lord Hobhouse explained, "The admission of the evidence… in no way prejudges or forecloses this question: section 23 (2) refers to evidence which appears to the court to be "capable" of belief and which "may" afford a ground for allowing an appeal." Moreover, Lord Bingham himself did not imply any derogation from the Stafford and Luvaglio principle, which he had only just adopted and repeated, nor suggest that he was diluting his own clear warning against any obligatory " thought process".[11]In Pendleton itself, Lord Bingham's conclusion that it was not possible to be sure of the safety of the conviction followed an analysis of the fresh evidence in its factual context. The judgment in "fresh evidence" cases will inevitably therefore continue to focus on the facts before the trial jury, in order to ensure that the right question - the safety, or otherwise, of the conviction - is answered. It is integral to the process that if the fresh evidence is disputed, this court must decide whether and to what extent it should be accepted or rejected, and if it is to be accepted, to evaluate its importance, or otherwise, relative to the remaining material which was before the trial jury: hence the jury impact test. Indeed, although the question did not arise in Pendleton , the fresh evidence adduced by the appellant, or indeed the Crown, may serve to confirm rather than undermine the safety of the conviction. Unless this evaluation is carried out, it is difficult to see how this court can perform out its statutory responsibility in a fresh evidence case, and exercise its "power of review to guard against the possibility of injustice". However the safety of the appellant's convictions is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe. We are grateful to Mr Rees for his submissions on Pendleton. We must now analyse the material available to us.[12]The appellant is a Finnish national who lived in Australia from the age of 13 years. He is now in his mid-fifties. While in Australia he was convicted of a number of offences of the greatest seriousness. In total, there were convictions for 31 offences, which included rape (for which he was sentenced to 12 years imprisonment in 1975) and murder (for which he was sentenced to life imprisonment in 1979). The fact of these convictions was relevant to the conduct of his case at the Central Criminal Court. We are not otherwise entitled to take account of them.[13]For some twenty years the appellant had been in a homosexual relationship with an AustralI national named Michael S. In 1985 they came to England separately, and then obtained employment as security officers with the same firm, and indeed, lived in the same accommodation. In July 1985 they met a woman named A. They stayed at her flat for a while, where, from time to time, S shared her bed. They then moved to Kew. While there they met a woman called M. Shortly afterwards they moved into her house, at first sharing the main bedroom. As their beds were separate M did not appreciate that they had been involved in a very long standing sexual relationship. In any event, M and Michael S became attracted to each other. They moved into the main bedroom, and the appellant to a bedroom downstairs. A few weeks later, on 28 th December 1985, M and Michael S married.[14]The Crown's case was that on the night of 5 th /6 th January 1986 the appellant assaulted and raped MS, and that on 9 th January, S's birthday, he twice raped A. The choice of these two particular women as his victims - women with whom S had associated - was treated by the Crown as evidence that the appellant's attacks on them were motivated by jealousy of and spite against S. The appellant's case at trial was that he had had sexual intercourse with both women, but with their consent.[15]At the time with which we are concerned, M was aged 35 years. She had been married three times before. She had six children. She lived at an address in Richmond with one of her sons, I, who continued to sleep in the bedroom at the address after his mother's remarriage.[16]The appellant and S worked alternate shifts. On 5 th January, after a domestic tiff, S went to work, and M returned to her house, eventually going to bed in the room she shared with her husband. The appellant and I returned from a public house. I went to his own room and fell asleep. The appellant then knocked on M's door, going in, with a message about a telephone call from her father. He sat on her bed, talking to her about the tiff with Michael, and then persuaded her to go downstairs and have a drink with him. As she made her way back to the room, he spoke about a problem with the wardrobe in his room, so she went in to see what the trouble was. Once she was in the room he began to massage her neck. She asked him to stop. He pulled her onto the bed, slapping her face, saying that she would enjoy it more with him than Michael. She screamed, but her son who was a heavy sleeper did not come. The appellant became angry and placed a pillow close to her face, threatening to use it if she did not keep quiet. She realised that she could not fight him. She stopped struggling. He penetrated her and ejaculated. Afterwards he got up and said he was going to work.[17]His account of events to the jury was quite different. He went to her room to tell her about a telephone call from her father. He suggested a drink together downstairs, and she went with him. They talked for a while, and an argument then developed about his relationship with Michael. He grabbed her, she screamed, he slapped her face and seized her by the hair. Thereafter she wanted a massage. She went and lay on his bed, plainly wanting sexual intercourse with him, and this took place by mutual consent. On his account, therefore, M had consensual intercourse with her new husband's best friend, a few days after their wedding, shortly after he had treated her with significant violence.[18]After sexual intercourse, M went into her son's room. He was asleep. The first thing that he remembered was that his mother had come into the bedroom hysterical and crying, saying that the appellant had raped her. She persuaded him not to telephone the police until the appellant had left for work. After the appellant had gone, I called the police and the complaint was made.[19]A next door neighbour was woken from her sleep in the early hours of the morning by what was described as the "tail end" of a scream, so loud, and seeming so close she woke her husband to see if their daughter was all right. She became aware of the sound of crying or sobbing from next door, M's home, which continued for five or ten minutes.[20]At about 2.30am the police arrived. M was very upset, sobbing and hysterical. Her face was red and puffy. She complained that Hakala had raped her.[21]The appellant was arrested at 3.00am. He was interviewed. The interview was recorded contemporaneously. Each of the answers was initialled, and each page and the end of the interview signed by him. He agreed that he had had sexual intercourse with M. He said it was consensual. He twice denied using violence at all. On his own later admissions at trial, those denials were false.[22]About three hours later M was medically examined. Hair from her scalp was loose. The right side of her face, near her nose, was swollen. There was a fresh scratch mark on her nose and her lower abdomen was tender to touch.[23]Later that day M withdrew her allegations. She told the police that her husband had disclosed his own relationship with the appellant, and that he wanted her to withdraw the charge in order to save the marriage. Accordingly the appellant was released.[24]Just before 2.30am on 8 th January, the appellant turned up at A's house. She was a woman aged 62 years. She said she was much younger (in her 40s). Sexual intercourse was very painful for her and although S had shared her bed earlier in the previous year, she said she had not had sexual intercourse for two years. The pain was caused by muscular rheumatism for which she had received treatment for some six years. The joints in her neck, back, shoulders, elbows and knees were painful and she was treated with various non-steroidial and anti-inflammatories, and strong painkillers.[25]Hakala and A went out for a drink, and spent the rest of the day, and, having been joined by a female friend of A's called Denise, the evening together. They all returned to A's home at about 1.00am. Denise returned to her own flat downstairs. A man called Cliff had joined them, and when he seemed anxious to stay, the appellant got rid of him by threatening to call the police. To avoid any suggestion that he was deliberately isolating A, he explained to the jury that Cliff had become unpleasant and abusive.[26]The appellant told A that it was too late for him to go back to his own home, and so, at his request, she agreed to let him stay, "as long as he did not touch her". She went to bed. He too undressed, and entered her bed and had sexual intercourse with her. She screamed and told him he was hurting her. He put his hand on her mouth. She was frightened. And screaming. The precise details of sexual intercourse do not matter, save that on her account she was not consenting, and making it absolutely clear that she was not. After sexual intercourse he went to sleep, leaving next morning, when she told him that some maintenance men were coming to look at the properties. After he had gone she went down to Denise's flat and told her that she had been raped by Peter. She did not report it to the police. She felt too ashamed.[27]The appellant's evidence to the jury was that A invited him to her bed, and that when sexual intercourse took place there were no screams or shouts. The only noise came from the squeaking of her bed. She never objected to anything. She consented. Nothing untoward occurred, and after he slept for a while, he left in the morning.[28]There was evidence from a witness who lived in the flat immediately below A's that at about 1.00am that night, and consistently with the time when A said that she was being raped, he heard screaming and shouting from above. The judge pointed out to the jury that in his statement to the police he had not referred to screams. The witness made clear that he could not understand why his statement had not done so, but in any event it had referred to shouts.[29]Later that day the appellant returned. A thought he was full of remorse. She was willing to forgive him. She let him in. She gave him something to eat. Then he attacked her again saying "I didn't give you the whole works last night but now I'm going to", adding "I'm going to fuck you till you bleed". He threw her onto the bed and raped her. She begged him at least to use some oil on the dressing table because she was hurting so much. When she screamed he put his hands round her throat, so that she stopped, because she thought she was being strangled. When sexual intercourse had finished he took her downstairs in order to get her to speak on the telephone to his supervisor at work. He left. She went to see Denise and said that it had happened again.[30]His account to the jury was of consensual sexual intercourse. She asked him to use oil as a lubricant, and he had done so. She had never objected.[31]During the course of these incidents the appellant had become separated from his cuff links. He said that he had removed them from his shirt while undressing for sexual intercourse. She said that she had found one cuff link on the floor, and the other in an ashtray.[32]That evening the appellant came to A's entry phone. On this occasion Michael S was with him. He said he wanted his cuff links. She would not let him in. He said he would go to the police if she didn't give them to him, and she responded that he should, and that she would tell them her story. When Michael came to the entry phone she asked him whether he knew that Peter had raped her twice.[33]On the following morning at about l0am Michael S telephoned her. He told her to contact D.I. Shepperdson which she did. The police came and she made a complaint. She was medically examined. The history of arthritis and prescription of pain killers and sleeping tablets was confirmed. A 7cm scratch mark was found on the inner surface of A's left leg. Her vagina was sore and red. There was one bruise on the right side of her vulva and another bruise of the vagina.[34]In the meantime M returned to the police indicating that, after all, she wished to pursue the allegation.[35]The appellant was re-arrested at 14.45 on 10 th January. He was taken to Richmond Police Station. Detention was authorised, and he signed a document which acknowledged that he had received a notice setting out his rights and that he did not want a solicitor.[36]He was taken out of his cell in the custody of D.I. Shepperdson and D.C. Hollingworth. According to the custody record that took place at 16.32. According to the officers he was interviewed between 16.35 and 17.25. The appellant was returned to his cell at 17.27. According to the officers the questions and answers were written down contemporaneously. When the interview was finished the appellant read through the notes, saying that there was nothing he wished to alter, but he declined to initial the answers or sign the interview. The record includes a written certificate at its conclusion signed by Chief Superintendent O'Connor, that the record was shown to him by D.I. Shepperdson at 17.40.[37]In this interview, according to the evidence of the officers, and the record made by Hollingworth, the appellant started by repeating sexual intercourse with M had been consensual. She was "turned on". Eventually he admitted that he had forced himself on her. When asked about A, he said that they had made love.[38]The appellant was re-interviewed on 11 th January. According to the custody record he was taken for interview by the same officers at 10.20. The interview record shows that it lasted from 10.22 to 10.50. The appellant was returned to his cell at 10.55. According to the police evidence, the interview was contemporaneously recorded. The appellant declined to initial any of the answers or to sign the record. The last of the eight pages of the record is endorsed with a certificate from the Inspector on duty, Inspector Manley, timed at 11.00.[39]In this interview, again according to the officers and the record, the appellant admitted that A had "told him not to", but "he didn't think she meant it". In brief, by the end of the interview, he admitted that A had not consented to sexual intercourse.[40]At 11.15 the appellant was taken from his cell and charged in the presence of the interviewing officers.[41]The case was prepared for trial. Although not all the original defence papers are now available, there is enough to show that the appellant's account to his solicitors, in sumM, was that both women were "willing" parties, and that after his second arrest, he had made no statement and said nothing to the police. That was expanded in a later statement to explain that although he was questioned, nothing was written down, and no notes were made. Although the questions were rude and nasty, the effect of his instructions was that he had admitted nothing.[42]The forensic problems with which these instructions confronted his solicitors and counsel were not unknown. The allegations against the police were very serious. If true, Hakala's instructions meant that they had fabricated evidence against him. The "implications", as noted in the solicitor's notes, of an attack on the police were "reiterated", and recorded as, "loss of shield". There was a further note which indicates that there was a discussion whether the appellant was adamant about his instructions or whether he would say that the interviews had taken place, but he had refused to sign the notes.[43]In May 2001, junior counsel commented on the first trial that "due to the nature of the appellant's previous convictions.... it was agreed in consultation with Queen's Counsel that this evidence could not be disputed. This would have involved serious allegations against the police, suggesting it was manufactured". Quite what that really amounts to is unclear, but for present purposes it is unnecessary to investigate the point further. Counsel did not repeat these observations about the consultations before the second trial. He said that his memory was not good. We have seen the note of the advice given by counsel before the second trial, and shall refer to it in the chronological narrative.[44]By the time counsel came to cross examine the police officers at the first trial about the second and third interviews, it is plain that the appellant's instructions had changed. The police officers were not challenged at all. The solicitor's note, (not transcript) showed that the cross examination proceeded on the basis that at the second interview, Shepperdson had put questions and that Hollingworth was writing down. No specific note on this point appears in relation to the third interview, but we assume from the rest of the note that the instructions, and cross examination, must have been the same. The points highlighted in cross examination were that by contrast with the first interview, the appellant had refused to sign the records of the second and third interviews, and that his manner during these interviews had changed, as we read the implications of the note, very dramatically.[45]More important than the cross examination, the appellant himself gave evidence. He spoke of his sense of anger at having been arrested, and his frustration, and how in those circumstances he said anything that came to his mind. He said that the police had treated him properly but he just gave the first answer that came to his head because he wanted to get the interviews over.[46]In cross-examination, he said that parts of the statement were true, but everything was said in frustration and anger. He did not know what the police would do with the pieces of paper, but they must have realised that something was wrong when someone was giving ridiculous answers. In answer to the judge, at the end of his evidence, he was asked whether the reason for his anger was the police probing into his relationship with Michael. He said that it was.[47]When summing up, the judge concluded that the jury would be entitled to look at the records of the second and third interviews, because the appellant had "said on oath the police record is correct".[48]As already noted, this jury was unable to agree verdicts on the counts of rape. The appellant was convicted of assault occasioning MS actual bodily harm. In due course a re-trial was arranged, to begin on 1 December. Before then, trial counsel returned his brief.[49]In a letter to his solicitors, date stamped 23 November 1986, about a number of facets of the case, the appellant wrote that he would like the police to be questioned "a little more".[50]Shortly before the trial, on 26 November, a further consultation took place with new Queen's Counsel. The note of the advice given by Mr James Wadsworth QC (as he then was) is unequivocal. The appellant "would have to make up his mind as to the truth of whether he actually said all those things or whether the police made up the statement". That was impeccable advice, perhaps underlining what is sometimes overlooked, that whatever the tactical advantages or disadvantages, or the potential consequences, the trial process is directed at the discovery of the truth.[51]By letter dated 30 November 1986, almost certainly, although the papers are not entirely clear, without referring to his legal advisors, the appellant initiated complaint proceedings against Shepperdson and Hollingworth, essentially on the basis of falsified notes relating to the second and third interviews. In due course, after the convictions with which we are concerned, and after a police investigation carried out by Chief Inspector Hobman, concluded in June 1987, both the Crown Prosecution Service and the Police Complaints Authority concluded that there was no sufficient ground for further action.[52]On 3 December 1986 the re-trial of the rape counts began. It is the safety of the convictions at this trial which is in question before us.[53]It is clear from the available papers that, as before, Counsel cross-examined the police officers, not to challenge the accuracy of their evidence, or the note taking process, but to highlight that the appellant had declined to sign the records of the second and third interviews. The note made by the solicitors runs out shortly before the appellant's evidence-in-chief on these issues. We are therefore dependent on the summary of it by the trial judge.[54]The appellant told the jury that, subject to a misunderstanding at the end of the first interview about the number of times he had struck MS across the face, that interview was the truth. As to the second and third interviews the judge quoted his evidence, "what I said as to raping M and A is not true. I just said the first thing that came into my mind. I agreed with what was suggested to me. It was because of my past. It was because my past relationship with Michael was brought up by the police officers. I just exploded. I was angry with the police officer and said the first thing that came to mind. Afterwards I read what was written but declined to sign. If I signed I would have signed something that was not true, so I would not sign."[55]Earlier in the summing-up the judge had referred to these interviews and observed, "the defendant accepts broadly (perhaps he has some reservations) .... what was written down is accurate in the sense the police have written down the questions accurately and his answers accurately. There is no suggestion they made things up".[56]Rightly, and obviously, the judge directed the jury that if the defendant had made the admissions, and if they were truthful, then the admissions in relation to each of the complainants were capable of providing corroboration of their allegations. In reality, and making every allowance for the fact that the first jury was unable to reach a verdict, the case against the appellant, even without his confessions, was a strong one. With the admissions, and in particular his own repeated agreement that he had indeed said the things attributed to him by the police, the case was overwhelming. The appellant was duly convicted.[57]Following his conviction, he continued to support the complaint made on 30 November. His renewed application to the Court of Appeal Criminal Division for permission to appeal against both conviction and sentence were, as already recorded, refused.[58]In June 1998, applications were made to the CCRC by solicitors acting on the appellant's behalf. The only relevant ground related to the admissibility of the evidence of admissions in the second and third interviews. This ground was supported by evidence from Mr Robert Radley, a forensic document examiner, and Mr Graham Nixon, an expert in linguistics. The CCRC sought its own expert evidence. This was provided first by, Mr M.G. Hall, a forensic document examiner, and then by Mr D. Baxendale, another forensic document examiner, and Professor Coulthard, a linguistics expert.[59]Thereafter the CCRC appointed its own investigating officer, Detective Chief Inspector Marshall. In the course of his enquiries he commissioned yet another report from another forensic document examiner, Dr Stephen Day.[60]The evidence based on linguistics took the attack on the interviews no further. Rightly, it was not referred to the Court, and no submissions were directed to it. The statements from the four forensic document examiners were included in the Reference. Mr Radley was called to give evidence before us. It was accepted that if his evidence were admitted under s. 23 of the Criminal Justice Act 1968, the statements of the other experts should then be admitted, and their statements treated as their evidence.[61]Before considering this evidence, we must record that our attention was drawn to a written statement dated 2 March 1999 from the appellant. In this statement he records that his "defence … were not able to attack the character of the two police officers without placing my own criminal record before the jury. I understood this difficulty and agreed that it would harm my case for the jury to know of my past record. It was agreed with my defence team that the only way for me to deal with this difficult situation was for me to say that the police records of interview … were accurate but that my admissions were untrue and that this was the reason I refused to sign the record. I gave evidence to this effect from the witness box. What I said was untrue but I was led to believe by my legal team that I had no real option but to do this". These comments are not consistent with the contemporaneous note made of Counsel's advice on 26 November 1986, before the trial with which we are most directly concerned.[62]On 2 August 1999 the appellant made a further witness statement. In it he said that his first interview, 6 January 1986, the note of which he had signed as a complete and accurate record, and which, indeed, he relied on at trial, was itself in part untrue. He had said that he had sexual intercourse with MS on a single occasion. In this August 1999 statement he says that he had sex with her on "two or three previous occasions".[63]In a further statement dated 2 August 1999, he said that at both the second and third interviews he was asked questions, but no notes were made. He denied rape. "It was either in this interview (second interview) or the one next day that I admitted having sex with MS. I also denied having sex with the other lady …" When he saw the notes of those interviews he "realised some of the facts in the notes may have come about from my conversation … but the whole interview was fabricated because no interview notes were recorded in the manner the officer stated".[64]In January 2000 DC Hollingworth made a statement, after looking at Mr Radley's report. He explained that "back in 1986 it was common practice to pre-head the front pages of contemporaneous interviews to save time. It was also common practice to make notes to pass to the interviewing officer as an aide memoire. I can say that if any pages of the interviews were re-written for any reason, then that would have been done in the presence of the accused and at the time of the interview". D I Shepperdson made a statement on the same date, confirming that at this time "it was the practice of interviewing officers in interviews to make and pass notes between each other.".[65]In the presence of the appellant, we twice gave Mr Rees the opportunity to call the appellant to give evidence before us, once in December, during the course of a short hearing which was adjourned, and the second before we embarked on the argument in support of the appeal itself. The appellant was not called. On both occasions we also asked whether D I Shepperdson or D C Hollingworth were required for cross-examination. They were not cross-examined.[66]The interview record for 10 January 1986 consists of a total of 11 pages. Page one is formal and uncontroversial. Page two records a denial of rape, and refers back to the first interview. On page three the police raised questions about the relationship between the appellant and Michael S. On page four this is followed up. On page five the appellant agrees that M was not a willing partner - "he wanted her to enjoy it to show Michael what a slut she is". The remaining pages explain his relationship with Michael and his attitude to his marriage. When the police turned to question him about A, he did not want to talk about it. At page 11 it is recorded that the appellant refused to sign the notes, "I am sorry. I cannot". Chief Superintendent O'Connor's entry is recorded at the end.[67]The interview record on 11 January 1986 consists of eight pages. Page one is formal. Page two refers to the arrangements when he and Michael lived at A's flat. Page three records his assertion that he and A had made love twice. On page four his admission that she told him "not to" is recorded, and he goes on that he "didn't think she meant it". He thought she would "enjoy it. I thought I could turn her on". Page five records him saying that he could not stand the sight of Michael going with these sluts. "Michael belongs to me". Pages six and seven do not record any graphic admissions, but support the Crown's case that he was admitting that sexual intercourse was not consensual. On page eight his refusal to sign the notes is recorded. Inspector Manley's Certificate is written at the end.[68]The significant area of concern about both interviews is that some pages were re-written, although we emphasise at the outset, on each occasion before the writing on the following page began. The pages where there is evidence of re-writing are:(a) Interview dated 10 January 1986. On page two of the present record there are impressions of a phrase "that Michael and you have been lovers", together with a figure "2" where the page number might have been written, together with very faint lines of the formal details which appear on page one. It is also clear that another version of page four of this record existed. Probably, the first few lines of this page were written, and then discarded, and the current version was written before the next page was started.(b) Interview dated 11 January 1986.Another version of page three existed. Again, this original version consisted of a few lines, which were then discarded, and the current page three was written before page four was started. The present version is identical to the original, but includes an extra question and answer which reads "have you ever had sexual intercourse with A?" The answer is, "Yes, twice". An original version of page eight also existed, again discarded after the first few lines were written, followed by the current page.[69]It is agreed by Mr Radley that the re-writings which were found took place during the course of the writing of the interview records themselves, as part of an ongoing process, apparently representing amendments made in the course of sequential writing. The pages in the records were completed in contemporaneous, sequential order, with page one resting on page 2 while it was being written, page 2 on page 3, and so on. The replaced pages were not changed at a later stage: whenever the writing took place, on the pages now available, and those missing, it all took place contemporaneously.[70]There are two further significant features. An analysis of the time taken by the interview, and the record produced, is consistent with a comfortable rate of writing, even taking into account the re-writing. Second, none of the pages which were discarded, or the pages which immediately followed the discarded pages, contained any admissions. The records of the critical parts of the interview, the admissions, and the explanations about what happened, do not reveal any cause for anxiety or doubt.[71]In Mr Radley's opinion there is nothing to indicate whether the records of these interviews constituted an accurate record of interviews which actually took place or whether they were, in whole or in part, fabrication. Dr Day also believes that the findings on examination are inconclusive whether the records are true records of interviews that took place, or false records. If the interviews did take place, both agree that nothing in their scientific studies permits them to express any conclusion whether the documents represent an accurate or inaccurate record of the interviews.[72]The CCRC itself noted that the "alterations discovered were not … particularly significant, and had not been to those parts of the record which contained Mr Hakala's admissions of rape". It was for that reason that further examination of the records was commissioned. We can summarise the evidence of Mr Hall and Dr Baxendale in precisely the same language used by the CCRC on the reference.[73]Mr Hall concluded:
"that it was not possible for him to determine whether the re-writings were the results of innocent mistakes or whether there are more sinister reasons for them"
. He explained how in his view it would have been possible and not unusual for the alterations to have been made innocently, and contemporaneously during interview. Dr Baxendale concluded: "In my experience of examining various disputed Interview Records, I have encountered pages re-written in such a manner on a number of occasions. The reason has usually appeared to be to correct mistakes, even though the proper procedure is to amend existing entries and initial the corrections".[74]The CCRC also noted the conclusion of Detective Chief Inspector Marshall that "the evidence available could support two alternative scenarios:(a) the interviews took place in a contemporaneous manner as described by the officers or(b) the interviews and notes are a total fabrication and were made by the officers prior to Mr Hakala being taken from the cell".[75]The CCRC itself concluded that there were two possible explanations for the findings, in effect agreed by all four forensic document examiners. "The first is that the alterations were made "innocently". At the time of the interviews, PACE had only been introduced for some two weeks. This was clearly a transitional period when officers had undoubtedly received some training about best practice in interview techniques, but tape recording equipment was not yet available in this station. None of the changes in the records affected that part of them which contained the admission of rape and sexual orientation. The supervising officers are not suspected of any malpractice and signed off the interview notes within 15 minutes and 10 minutes respectively, of the interviews. Complete writing or re-working the interview records within these timeframes would not, in the Commission's opinion, have been possible. Moreover the ESDA tests show that the pages were written in sequence, and the scale of the alterations was not large".[76]The CCRC's "alternative possibility" is that, given that there was insufficient time to re-write or write the interview record after the interviews but before the certification by the supervising officers, it is possible, but not proved, that the two officers concerned may have collaborated and prepared the record of interviews before the interviews took place. The Commission notes that the details of the discussion in the second and third interviews were known to the officers by the time of Mr Hakala's second arrest.[77]We therefore emphasise that the present Reference is not made to this Court on the basis of evidence which demonstrates that the interview records were fabricated. The CCRC's approach can be readily understood from paragraph 11.14 of the Reference. "Had the information in the ESDA test reports been available at the trial, the defence would certainly have sought, by voir dire to have the alleged confessions excluded. Alternatively the judge might have exercised his discretion and allowed the records of the interviews to be called as part of the main trial. In which case the ESDA evidence would have been before the jury. In either circumstance, it is in the opinion of the Commission, not possible to say, "that the jury would necessarily have arrived at the same conclusion if they had knowledge of the fresh evidence".[78]We do not agree with this analysis. If the second and third interviews (referred to hereafter as "the interviews") had been challenged on voir dire on the basis of the expert evidence alone, they would not have been excluded. We emphasise that, although there is some suggestion that such an argument was indeed advanced at the first trial, for obvious reasons unsuccessfully, we doubt whether trial counsel armed with this material could properly have sought to exclude the evidence. In general terms, the voir dire was and remains concerned not with veracity, but admissibility. The issue for determination, taking account of the expert evidence, which for present purposes we must assume would have been available, was whether the police officers were giving a truthful account of the interviews which had taken place or were producing an invented account, supported by fabricated records of interviews which had not taken place at all. The expert evidence does not demonstrate that the police account of admissions made in the interviews was false: more important, in the present context, nor does it prove that the interview records themselves were fabricated. Before us, the Crown continued to rely on the interviews and would no doubt have done so if the issue based on the expert evidence had been ventilated at trial. The issues, whether the interviews had taken place, and the records falsified, would have been pre-eminently an issue for decision by the jury, not for the judge on the voir dire.[79]We must next consider the Commission's alternative scenario, that the judge might have allowed these issues to be explored at the "main trial", that is before the jury. If the judge had rejected the application on a voir dire to exclude the evidence (as in our view he should), he could not justifiably have prevented the defence (if it had so wished) from cross examining the police officers on the basis of Mr Radley's expert evidence, and if subsequently thought appropriate at a later stage, from calling Mr Radley to give evidence for the defence. But, to what purpose? And with what effect? The evidence was relevant to the stark issue, whether the records of interviews were or were not fabricated by the police officers. In short, the tactical question which faced Hakala's legal advisors without this evidence would have continued to face them if it had been available. And the problem of his previous convictions would have arisen equally directly. As we emphasise, and he himself accepted, before us, and would have accepted at trial, Mr Radley's evidence was not sufficient on its own to demonstrate fabrication of the interview records. Faced with all the other evidence against him, Hakala would have been unlikely to exercise his right not to give evidence, and if he did, his "shield" would have been no less likely to have been lost. In short, on this alternative, the tactical position would have been unchanged.[80]These considerations lead to analysis of a further problem. Counsel's instructions at trial were that the second and third interviews had indeed taken place, and that the records of admissions were substantially accurate. The defendant accepted in his sworn evidence that he had said these things to the police, but, as we have indicated, sought to explain them away. On the basis of his instructions, counsel could not properly have challenged the veracity of the police officers. The Commission's approach presupposes that counsel's instructions at trial would have been different, that is, consistent with what Hakala was saying before and after his trials and is saying, not quite consistently, now, and that Hakala would have abandoned his instructions at trial based on his sworn testimony before not one, but two juries. In effect, we are asked to assume that Hakala's evidence at trial on this issue was perjured, uttered to avoid the potential tactical disadvantage created by his previous convictions, itself predicated on the further assumption that if Hakala had given what is now supposed to be regarded as truthful evidence, the court would inevitably have allowed him to be cross examined on his record. We do not believe that there was any such certainty about the outcome. Before the second trial Hakala was given clear warnings of the serious risk that he would lose his "shield", but as far as we can see from the notes of consultation before this trial, the advice was not postulated in terms of absolute certainty. But, what if it were?[81]The trial process is not a tactical game. Under the rules which govern every trial at any given stage in the evolution of the criminal justice process, forensic steps taken by one side, or the other, carry forensic consequences. None of the tactical decisions appropriate to meet contemporary rules are predicated on the basis that any witness, and in particular any defendant who chooses to exercise his right to give evidence, is somehow entitled to depart from the fundamental requirement that his evidence should be truthful evidence. As a corollary, the opportunity for the defendant to give his evidence is provided at his trial, and that is where he must take it.[82]It follows that this court will only permit an appellant to present a factual case inconsistent with his instructions and sworn testimony at the trial at which he was convicted in the most exceptional circumstances. Nothing in Pendleton undermines this principle. In this appeal, on the basis of admittedly equivocal - in reality, neutral - evidence from forensic document examiners, we are being asked to ignore the oral testimorny given by Hakala to the jury which convicted him and simultaneously to find that two police officers, whose evidence was unchallenged, indeed accepted by him, some 15 years ago, were or may have been, guilty of gross misconduct. The present Reference does not sufficiently address these problems.[83]Indeed it is a somewhat surprising feature of the CCRC's analysis that there is virtually no reference to the sworn evidence of the appellant at trial. The fact that this evidence was given forms part of the summary of the defence case. (2.16) That is very early in the narrative. Later, it is suggested that Hakala denied throughout the case that the records of the second and third interviews were true. (8.1) There is a passing reference at 11.1 to what are described as "now disputed records of interview", but the entire analysis of the critical features of the case leading to the Reference is predicated on the basis that Hakala had consistently challenged the interviews. He had not. He had twice, on oath, positively and unequivocally accepted the essential truth of the evidence given by the police officers about the interviews. That fact should have informed the analysis from start to finish. So should the fact that each successive report from each successive forensic document examiner consistently produced the same essential conclusion, in effect that the alterations of the records may have been the result of innocent, explicable corrections made as the interviews progressed, as well as possible fabrication, but if so, with the striking feature that the changes were not related to any incriminating answers.[84]No application to call Hakala was anticipated in the Reference, nor in the skeleton argument prepared on his behalf. As already indicated, he did not accept the invitations to give evidence before us.[85]We do not need to speculate on the outcome if the expert evidence had demonstrated that incriminating parts of the records had been indeed been fabricated, and that Hakala's evidence at trial that he made the admissions recorded in the interview records could not have been true. In those circumstances, in accordance with the proper discharge of the prosecution's duty, the Crown might well have indicated that it no longer proposed to rely on the recorded admissions. As we emphasise, that is speculation about what would have been a quite different case.[86]We have examined all the available material. We have heard Mr Radley. We shall admit the evidence of all four forensic document examiners. We have evaluated that evidence in the context of the remaining material before the jury. We have also examined all the material sent by the CCRC. For the reasons given at some length, we have concluded that it is unnecessary and would be inappropriate to consider whether this fresh evidence, if given at trial, might reasonably have affected the jury's decision to convict. The jury impact test would not be helpful. In our judgment these convictions are safe. Accordingly the appeal will be dismissed.

Cited in 35 later judgments

and 26 more of the most senior