James, R v [2004] EWCA Crim 1433

Case No 2002/05299/C2

[2004] EWCA Crim 1433

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday 21 May 2004

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE WALLER

MR JUSTICE JACK

and

MR JUSTICE DAVID CLARKE

Between

R E G I N ACrown

- v -

Between

ALBERT GEORGE JAMES

Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4

Telephone 020-7421 4040

(Official Shorthand Writers to the Court)

MR E REES QC and MISS R TROWLER

appeared for APPELLANT

MR S DRAYCOTT QC and MISS J HOPKINS

appeared for CROWN

J U D G M E N T

Friday 21 May 2004

[1]On 16 October 1986, in the Crown Court at Reading, before McCowan J, the appellant was convicted of murder (count 1) and of conspiracy to rob (count 2). He was sentenced to life imprisonment on count 1 and to 15 years' imprisonment concurrent on count 2. The co-accused Johnson, Hall and Windsor had each pleaded guilty to conspiracy to rob and were convicted of murder. Thus as will be clear from that summary, the appellant pleaded not guilty to both conspiracy to rob and to murder.

[2]An application for leave to appeal against conviction was refused by the single judge. A renewed application to the full court on 6 December 1999 was also refused.

[3]However, the Criminal Cases Review Commission has referred the matter to this court. Their concerns are these. The key evidence against the appellant were admissions or confessions which the Crown alleged that he had given in interview and/or by virtue of a statement taken by the police. The Commission were also concerned about the fact that there appeared to have been breaches of the Police and Criminal Evidence Act 1984. They were concerned that these confessions should have been excluded under sections 76 or 78 of that Act.

[4]It is by reference to those concerns that the appeal has been mounted in this court. There clearly were serious breaches of the 1984 Act. In particular there was a breach of section 58 relating to the refusal to allow the appellant to have a solicitor to advise him privately or be present during the interviews. At the outset of this appeal very properly Mr Draycott for the Crown has accepted that that breach was such that these interviews should have been excluded. Furthermore, Mr Draycott has conceded on behalf of the Crown that if these interviews had been excluded, the effect would have been either that the case would have been stopped at the conclusion of the evidence for the prosecution and there would have been effectively no evidence on which a jury could safely convict, or possibly (but not the likely outcome) the case would have continued but the appellant would not have been called to give evidence, and again that might well have led to his acquittal. The only other evidence was that of the appellant's co-accused, about which the jury would have had to have been given the usual warning.

[5]In the circumstances we will give our judgment reasonably shortly. The facts of the case were these. The Pelham family were travelling showmen who kept large sums of cash in their caravan on the site where they lived in Twyford, Berkshire. During the evening of 11 January 1986, the victim of the murder, Charles Pelham, went outside to see to his dog. He was shot twice with bullets fired from a revolver. Two men ran off, but they left behind a sawn-off shotgun, a live round, a pair of handcuffs and a woollen glove.

[6]There was no dispute that the co-accused, Johnson and Hall, had entered the yard with the intention of robbing the Pelhams. Hall accepted that he had fired the revolver. The co-accused Windsor had been the getaway driver.

[7]The revolver, loaded with six cartridges (two spent) was found buried near the caravan site, where the appellant, who was also a showman, lived. The shotgun had been first sold to the appellant in December 1985 and then had been supplied to one or other of the co-accused.

[8]The prosecution case was that the appellant was a party to the agreement to rob the Pelhams. It was their case that he had supplied the information about them and had supplied the shotgun. It was also alleged that all four co-accused were guilty of murder because the use of loaded firearms was contemplated if the need arose.

[9]The appellant denied being a party to the plan to rob. His case was, therefore, that as he had not been a party to that plan, he was not guilty of the murder.

[10]The appellant was arrested originally on 12 January 1986. Having been questioned, he was released. But he was arrested again on Friday 17 January 1986. On all relevant occasions he was denied access to a solicitor. As already indicated, during the interviews on the 17th he made certain admissions on which the Crown wished to rely. He then made a statement in which again he made admissions and upon which the Crown wished to rely. Finally, in further interviews, after making that statement, he made admissions on which the Crown wished to rely.

[11]Because of the point that arises on this appeal it is unnecessary to go into further detail. It is right, however, to say two further things about the facts. The first is that following the close of the prosecution case, the appellant's co-accused went into the witness box. Both gave firm evidence that the appellant was a party to the conspiracy. In his summing-up the judge warned the jury, as he was bound to do, that it was dangerous for the jury to convict the appellant on un-corroborated evidence. He directed them that there was corroboration and that corroboration was what the appellant had said in interview.

[12]The second point to make on the facts is this. A Dr Thomas gave evidence to the effect that he had prescribed drugs to the appellant for the purpose of calming him down and for the purpose of enabling him to sleep; that he thought that the appellant would not be able to answer questions sensibly; and that he thought that the appellant would not be fit to undergo six hours of interview having regard to the condition he was in, including the drugs the doctor had prescribed for him.

[13]The first feature of the appeal is this. The fact that the appellant had been denied a solicitor must have been readily apparent to those advising him. Cases since 1986 have made the position clearer than it may have been then, but it must have struck those advising the appellant that there might be arguable points as to whether the admissions made in interview should be placed before the jury, but the decision taken by the defence at the trial was not to apply to have those confessions or admissions excluded. At trial the material was placed before the jury, such as it was, that the appellant had been interviewed. The appellant made assertions as to the circumstances in which he had come to make the admissions, including threats being made by the police in relation to his wife and child, and asserting that he was not fit and did not know what he was saying. Therefore the question of the reliability of the admissions was placed before the jury.

[14]The arrest of the appellant took place only a few days after the Police and Criminal Evidence Act 1984 came into force. Those cases with which we are now readily familiar, which demonstrated the attitude that the court was likely to take in relation to the provisions of PACE, were not then decisions available to those advising the appellant. Furthermore, it is fair to say that there are experts in the field relating to the reliability of confessions -- medical evidence and psychological evidence -- which is now allowed to be admitted in court, but in those days was in its infancy. It was unknown to many of those who were advising defendants and obviously such evidence was not available to those advising the appellant at the time.

[15]The submission which Mr Rees QC makes on behalf of the appellant can be summarised in this way. His submission is that on a proper application of sections 76 or 78 these admissions or confessions should not have been placed before the jury. His submission thus is that there would then have been no case to answer, that the jury would have acquitted, and that accordingly the conviction is unsafe. In relation to section 76 his submission is that the Crown would have been unable to discharge the burden of proving to the criminal standard that the admissions were not obtained in consequence of things said or done which were likely in all the circumstances existing at the time to render unreliable any admission which might be made in consequence thereof. So far as section 78 is concerned, he submits that in the circumstances in which the evidence was obtained, its admission would have had such an adverse effect upon the fairness of the proceedings that it ought not to have been admitted.

[16]The sequence of events is that, as indicated, the appellant was first arrested on 12 January. That is not however the most relevant date. It is in relation to his further arrest on 17 January on which we must concentrate. He was arrested at 6.50 in the morning. At 7.45am, on the authority of Superintendent Eyles, Police Sergeant Harman, a custody officer, refused the appellant's request for a solicitor. The appellant was then interviewed by Detective Constables Greenall and Dixon over a period of seven hours, starting at 9.20am and culminating in a voluntary statement at 2.45pm. It is right to say that that seven hours included breaks. However, at 12.20pm on that day (while the appellant was being interviewed) the custody officer refused the request of a duty solicitor, Mr Wroe, to see the appellant. Mr Wroe has made a witness statement dated 14 September 2001. His evidence is (and it is not challenged) that he would have advised the appellant to remain silent. At 12.40pm the solicitor was again refused access by Superintendent Eyles. In particular the solicitor's request to advise the appellant of his legal rights was refused. It is in those circumstances that the admissions were made without access to the solicitor.

[17]The question of whether the confessions should be excluded would have to be viewed in the context of the evidence in relation to the appellant's physical condition. In that context there would have been before the trial judge, if he had been conducting a voire dire, the evidence of Dr Thomas to which we have already referred. It is unnecessary to repeat the details of that, save that his evidence was to the effect that the appellant was not, in his medical view, in a fit condition to be interviewed over that period of time.

[18]What would not have been available to the trial judge, but is available to us, is the evidence of Professor Kopelman, which is to the following effect. He believes that the appellant's low intelligence and poor literacy skills, his tendency to 'compliance' and his low self-esteem, compounded by an over dosage of benzodiazepines at the time of the critical second interview would have made him vulnerable to the making of a false confession, especially if he perceived a police threat to his safety or that of his family. His view is that the appellant's confession may not be reliable.

[19]It is in that context that the approach to section 58 must be viewed. We say that because, as submitted by Mr Rees, the Police and Criminal Evidence Act was passed and the Codes were produced under PACE because of the dangers of the vulnerability of witnesses or potential defendants. The whole idea was to put safeguards into the interrogation processes.

[20]The key section of the Act is section 58. That provides so far as relevant:

“(1) A person arrested and held in custody in a police station shall be entitled, if he so requests, to consult a solicitor at any time. .... (4) If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that delay is permitted by this section. .... (6) Delay in compliance with a request is only permitted: (a) in the case of a person who is in police detention for a serious arrestable offence; and (b) if an officer of at least the rank of superintendent authorises it. .... (8) An officer may only authorise delay where he has reasonable grounds for believing that the exercise of the right .... (a) will lead to interference with or harm to evidence connected with a serious arrestable offence or interference with or physical injury to other persons; or (b) will lead to the alerting of other persons suspected .... but not yet arrested....; or (c) will hinder the recovery of any property obtained as a result of such an offence .... .... (11) There may be no further delay in permitting the exercise of the right .... once the reason for authorising delay ceases to exist.”

Code C provides guidance on the way in which that section applies. It is unnecessary to go into the details of that.

[21]As already indicated, when this section first came into force it may well be that the police thought that section 58(8) gave a general discretion as to whether to delay the entitlement to access to a solicitor, and it may well be that those advising the appellant on this occasion thought that the superintendent in this case had exercised that fairly wide discretion. However, the Court of Appeal authority of R v Samuel

(1988) 87 Cr App R 232

, put a very different complexion on the approach to section 58. It emphasised, for example, that the most important right given to a person detained by the police is his right to obtain legal advice. It also emphasised section 58(8), and the factors which the police superintendent must believe if he is to exercise his discretion in favour of authorising delay. The emphasis placed by that decision was on the fact that the officer had to believe that access to a solicitor will lead to interference and will lead to alerting other persons suspected and will hinder the recovery of any property, and not simply that it might do so or could do so. It also emphasised that for a solicitor deliberately to alert persons suspected, or deliberately to hinder the recovery of property, would make him guilty of a criminal offence. That was an unlikely situation in which a solicitor would find himself. On any view the case suggested that it would be unlikely for the police to believe that the result of allowing a solicitor to see the appellant, or for a defendant to have access to a solicitor, would lead to those results. It would be even more unlikely when a duty solicitor -- somebody well known to the police -- was the solicitor in relation to whom access had been denied.

[22]The problem in this case was that the police gave evidence at the trial as to why it was that they had taken the view that access should be denied, but their evidence showed that they did not apply the test that Samuel indicated must be applied. The test applied was simply that they were worried at the time as to whether there may be other suspects, and they were worried about the recovery of the gun. Thus they thought that access to a solicitor might have the result of hindering those aspects.

[23]The Crown have had to concede that the police could not have had any anxieties about other suspects since all other suspects had been arrested by the time access to a solicitor should have been allowed. So far as the gun was concerned, there was very little which could have allowed the police to say that access to a solicitor might have had the effect of hindering the recovery of the gun. But on any view there was no possibility that they could have believed that to have permitted the appellant to have access to Mr Wroe (who although not acting as a duty solicitor on this occasion was somebody who did act as a duty solicitor), could in any way have alerted other persons suspected but not arrested, or could have hindered in any way the recovery of the gun, which was the matter of concern.

[24]It was conceded by Mr Draycott that there was a very clear breach of section 58. Although Samuel in one sense could be said to take matters further than the Crown would accept now they should be taken, there are Court of Appeal authorities following Samuel, for example, R v Allerdice

(1988) 87 Cr App R 380

, R v Absolam 88 Cr App R 332, and more modern cases where the Court of Appeal has looked retrospectively at cases referred back to them, as are we. There is the unreported case of R v Roberts (19.3.98), a transcript of which we have. That was a case in which the court looked at the situation even prior to the passing of the Police and Criminal Evidence Act, and emphasised the importance of the presence of a solicitor and the unreliability of confessions which were obtained in the absence of a solicitor.

[25]We consider that the submissions of Mr Rees on this aspect are sound. He has other points, but the Crown have very properly conceded that this point itself renders the conviction unsafe. It would therefore not be right to take up time going through those other points. The position is simply this. If an application had been made at the trial that these admissions or confessions should not have gone before the jury, and if the authorities such as we have referred to had been before the judge, we have no doubt that the confessions and admissions would have been excluded. We have no doubt that if that had happened there simply was no case which would have been able to go to the jury implicating the appellant in the conspiracy. On that basis there would have to have been a direction to acquit. That being the situation, it seems to us that this conviction must be held to be unsafe. The appeal will be allowed and the conviction quashed.

[26]MR REES: My Lord, I am instructed to raise with your Lordships one matter. The view we took was this. Although we knew in advance that the Crown had no particular challenge to any of the three proposed witnesses in these proceedings, namely Professor Kopelman, Mr Young and indeed Mr Wroe, the solicitor, the view that we took -- and I hope it is a proper one (and I am basically seeking your Lordships' approval) -- is that it was nevertheless appropriate to ask for their attendance in case a point cropped up on which the court needed assistance or upon which I might need assistance. My application is that the court approves the attendance of the witnesses today for the purposes of their expenses.

LORD JUSTICE WALLER: Yes, their expenses should be paid for being here.

[28]MR REES: I am grateful, my Lord.