Brown, R. v [2006] EWCA Crim 141

Case No 200305981/C1[2006] EWCA Crim 141
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Leicester Crown Court
Mr Justice McCowan
1098/02/8
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 15 th February 2006
Before
LORD JUSTICE WALLERMR JUSTICE GRAYSIR MICHAEL WRIGHT
Between
The QueenRespondentJohn Lewis BrownAppellant
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Nigel Sweeney QC (instructed by CPS) for RespondentGordon Aspden (instructed by Wilkin Chapman Epton Blades Solicitors) for Appellant
Judgment
[1]On the 15th December 2005 we quashed the conviction of the appellant and these are our reasons for so doing.[2]The quashing of this conviction is a further consequence of the gross misconduct during the 1980s by a number of police officers in the now-disbanded West Midlands Serious Crime Squad. A number of convictions have already been before the Court of Appeal and held unsafe. So far as material to this case there is attached to the grounds of appeal a summary relating to the conduct of officers concerned with the appellant identifying the cases where there conduct was called in question, and for convenience that summary is attached as an appendix to this judgment.[3]This appellant was one of those indicted on a twenty-five count indictment referred to by Rose LJ, Vice President, in one of those cases R v Dunne [2001] EWCA Crim 169, an appeal dealing with four others named on that indictment. That indictment was severed. There were thus two trials before McCowan J (as he then was) in January, February and March of 1983. Count 12 on the original indictment related to a robbery of the Erdington Post Office. In the second trial it seems that count became count 5. That was the only count relating to the appellant and to that count he pleaded guilty before the first trial and was sentenced following the second trial to two years, with nine months consecutive for the breach of a suspended sentence. It is that plea of guilty which makes this appellant’s position different from others and we will return to that below.[4]Of his co-accused, his uncles Ronald and Donald Brown, were convicted following the first trial and received sentences of 18 years and 12 years respectively. Michael Dunne (his cousin), Patrick Gaughan, Derek Treadaway and Paul Landale were convicted following the second trial and received sentences of 15 years, 12 years (reduced on appeal to 10), 15 years and 12 years respectively. Morgan and Mackay, who had pleaded guilty and given evidence for the prosecution each received sentences of five years.[5]Treadaway appealed but his appeal was dismissed. However he brought civil proceedings and in those proceedings McKinnon J found, at a trial in 1994, that he had been tortured by certain police officers. He also found that the police officers had lied on oath to him and that Treadaway had been cynically denied access to a solicitor. His case was referred back to the Court of Appeal and on the 18th November 1996, in the light of McKinnon J’s findings, and in the light of the facts that Mackay’s evidence had been tainted by virtue of his being handled by DI Brown and DC Price and that Morgan’s evidence had been tainted by virtue of being handled by DS Hornby, the Court of Appeal quashed Treadaway’s conviction in trial two.[6]In the light of that decision and in the light of concessions made by the Crown, the Court of Appeal thereafter quashed the convictions of Ronald and Donald Brown in trial one and Michael Dunn and Patrick Gaughan in trial two. The concessions included that, in the light of the findings in the civil proceedings in Treadaway, and in the light of concessions that the Crown had already made in a further case in which the conviction of a man called Twitchall had been quashed “the credibility of the investigation as a whole was undermined”.[7]This appellant requested the Criminal Cases Review Commission to consider whether, despite his plea of guilty, his case should be referred to this Court. The thrust of his submission to the Commission was that despite his plea of guilty he was not in fact involved in the Erdington Post Office robbery. His case to the Commission was(1) that he had socialised with a DS Duggan (not a member of the Serious Crime Squad) and had provided information on Dunne and Morgan, linking them to the Erdington robbery;(2) that it was to his great surprise that he was arrested;(3) that he was denied a solicitor and was not allowed to see DS Duggan;(4) that he was told by the officers interviewing him, who were in the main DS Burns and DC Evans, that unless he signed a confession naming names the police would ensure that his uncle and his cousin would be told that he had grassed on them with regard to various robberies;(5) that he signed a statement refusing to name Dunne, but naming Treadaway, even though he did not actually know Treadaway;(6) that he knew if he pleaded not guilty that would make it worse for those named in his statement and in that respect it would make matters worse also for himself; and(7) that his only way of distancing himself was to plead guilty and hope for a lighter sentence.[8]The Commission, in its statement of reasons, referred to certain authorities where the Court of Appeal had had to consider whether convictions should be set aside where there had been pleas of guilty. They referred to R v Forde [1923] 2KB 400 in which Avory J had identified limited circumstances in which the Court of Appeal would interfere. Those circumstances were(1) that the appellant had not appreciated the nature of the charge, or did not intend to admit that he was guilty of it, or(2) upon the admitted facts the appellant could not in law have been convicted of the offence charged. The Commission recognised that there were cases that now went further than Forde, and in particular referred to R v Togher [2001] 3 All ER 463 in which the Court had held that a prosecution might be vitiated by an abuse of process in which event the Court had recognised that a conviction may be quashed despite a plea of guilty.[9]The Commission considered that the appellant’s application raised issues as to whether his pleas had been secured by duress, such as to bring him within the first exception in Forde and as to whether there had been an abuse of process on the part of the prosecution, which the Court of Appeal might hold had vitiated the appellant’s plea of guilty.[10]The Commission was of the view that, both on the grounds of duress and abuse of process, there was a case for this Court to consider. On duress they put the matter this way:- “63. The Commission has considered whether Mr Brown’s plea was secured by duress such as to bring him within the first exception in Forde. The Commission notes the following:64. It is Mr Brown’s account that if he did not sign the confession statement prepared by the police, his uncles and cousins would be told that he was the informant that led to their arrest for a series of armed robberies.65. From the reports by Peter Crane and DS Owen and Mr Brown’s own statements to the Commission, it is clear that Mr Brown was indeed an informant to DS Duggan and in all probability was the initial source to the threat said to have been made by the interviewing officers. Furthermore, the information now available about the activities of the officers involved in Operation Cat lends substantial force to the contention that those officers were determined to get confessions, if need be by the use of oppression, from suspects who were arrested on that day.66. It is also evident that Mr Brown’s cousin, Dunne, had a reputation for violence and that Mr Brown being a relative would have been well aware of this and thus that such threat, if made, would have resulted in genuine fear on his part.67. Mr Brown’s solicitor at trial, Mr Figg, confirms that Mr Brown was in a state of anguish as to what to do in relation to plea. This lends some force to the supposition that Mr Brown was still affected by the threat to expose him if he were to change his plea.68. The Commission is of the view, therefore, that there is considerable evidence capable of supporting the conclusion that Mr Brown’s confession and his subsequent plea were the result of duress.”[11]On abuse of process they considered certain authorities dealing with cases where there had been pleas of guilty, to which we will return below. They then put the matter this way:- “74. The following elements in relation to the conduct of the police in Mr Brown’s case support an argument of abuse of process:• The use of evidence from tainted super-grasses who were handled by corrupt officers. This evidence was used both in the interrogation of suspects and as a major part of the prosecution evidence in the trial of the defendants who pleaded not guilty.• The arrest of the defendants followed by apparently concerted measures to ensure that the suspects’ requests for the advice of their solicitors was not complied with. There is a substantial body of evidence that some or all of the defendants were prevented from seeing their solicitors by a variety of misrepresentations being made to their respective solicitors. It would seem a reasonable inference that this was agreed in advance by police officers concerned in the investigation. It would also seem unusual that a person undergoing interrogation on suspicion of serious offences, who asked for a solicitor to attend him, would decline the services of that solicitor when he attended the police station.• The obtaining of confessions by whatever means from the various suspects. This evidence is capable of supporting the conclusion that these means ranged from extreme illegal violence to unlawful threats.• The giving of perjured evidence by the officers at the subsequent trial. 75. The Commission considers that if this evidence is accepted or substantially accepted, it amounts to the proposition that the police were determined to establish evidence, if need be by the use of oppression and false testimony, against persons whom they believed to be guilty of these offences. If this is correct, the Commission considers that this would amount to an abuse of process in the bringing of the prosecutions against the defendants. 76. In relation to Mr Brown’s case, the Commission has applied itself to the question in Togher, namely whether it would be “inconsistent with the due administration of justice to allow the pleas of guilty to stand”. 77. The Commission considers that, if the court were to conclude that there had been an abuse of process, they would conclude that it is inconsistent with the administration of justice to treat Mr Brown as bound by his guilty plea. The effect of the abuse, if such is established, in Mr Brown’s case would be to bring about an admission from which Mr Brown could not resile without risk of disclosure of his informant role and of violent retribution from his associates. Reverting to the judgment in Togher, the Commission does not consider this to be a case where “improprieties in connection with bringing proceedings can be satisfactorily dealt with by the court exercising its power of control over the proceedings. 78. The Commission also considers that the authority of R v Kelly and Connolly lends force to the proposition that if the convictions of Mr Brown’s co-accused are regarded as unsafe, having been secured by irregularities in the conduct of the prosecution, this is a relevant consideration in considering whether Mr Brown is bound by the consequences of his guilty plea.”• The use of evidence from tainted super-grasses who were handled by corrupt officers. This evidence was used both in the interrogation of suspects and as a major part of the prosecution evidence in the trial of the defendants who pleaded not guilty.• The arrest of the defendants followed by apparently concerted measures to ensure that the suspects’ requests for the advice of their solicitors was not complied with. There is a substantial body of evidence that some or all of the defendants were prevented from seeing their solicitors by a variety of misrepresentations being made to their respective solicitors. It would seem a reasonable inference that this was agreed in advance by police officers concerned in the investigation. It would also seem unusual that a person undergoing interrogation on suspicion of serious offences, who asked for a solicitor to attend him, would decline the services of that solicitor when he attended the police station.• The obtaining of confessions by whatever means from the various suspects. This evidence is capable of supporting the conclusion that these means ranged from extreme illegal violence to unlawful threats.• The giving of perjured evidence by the officers at the subsequent trial.[12]They also assessed Mr Brown’s exculpatory account as set out in the statements placed before them, and took the view that although they could not conclude whether they were true or not, they were “capable of belief” for the purposes of s.23 of the Criminal Appeal Act 1968.[13]Mr Gordon Aspden put in grounds of appeal and a detailed skeleton argument. He set out in the skeleton the facts and the prosecution case in a way with which we did not understand Mr Sweeney QC for the Crown to disagree. The facts of count 5 concerned an armed robbery which occurred at approximately 11.30 am on Monday 26th November 1979. A security guard, employed by Security Express, was threatened with a sawn-off shotgun outside Erdington Post Office, Birmingham. He was forced to hand over a bag containing in excess of £15,000, together with a quantity of cheques.[14]The prosecution case was that the offence involved six men:• Langdale conceived the plan and acted as a lookout;• Dunne (the appellant’s cousin) helped steal a getaway vehicle. He provided the firearms, the walkie-talkie radio and the overalls that were used. Dunne was present as a lookout;• Mackay and Treadaway, each of whom had a sawn-off shotgun and wore a “funny mask” confronted the security guard and stole the money;• Morgan acted as a look-out. He also drove vehicles used in the offence, including a stolen van in which the get-away was made.[15]It was alleged that the appellant’s role was to act as a lookout. According to the accounts which Morgan and Mackay later gave to the police the appellant was given a walkie-talkie radio. He was familiar with its operation. The prosecution case, which depended on statements from Morgan and Mackay, was to the effect that the appellant parked his motor car on Erdington High Street opposite an alleyway leading to the rear of the post office. The motor car was maroon in colour and variously described as “a Mini” (in Morgan’s first confession statement), then as “a Mini, a Wolsley Hornet or a Riley Elf” (in Morgan’s witness statement) or “a Riley Elf” in Mackay’s witness statement. There was furthermore evidence that, at the material time, the appellant owned a Wolsley Hornet.[16]The Crown case was that, on the day of the robbery, the security van arrived unexpectedly early. The appellant did not therefore have the opportunity to use his walkie-talkie radio. It was thus Morgan who ran to the transit van and informed Mackay and Treadaway. The appellant, on Morgan and Mackay’s evidence, drove off and the robbery was carried out as planned.[17]The proceeds of the offence, according to Morgan, were divided up and the appellant and Langdale each received £500.[18]In Mr Aspden’s skeleton he describes how DS Duggan (as we have emphasised not a member of the Serious Crime Squad) cultivated the appellant as an informer. In a statement from DS Duggan, obtained in June 2004, he said that the information that the appellant gave on the Erdington robbery was in such detail that [the appellant] must have been present during the robbery. In a later statement DS Duggan retracted that assertion. He would go no further than saying the appellant must have been very close to those concerned to provide the detail that he did.[19]The skeleton then described how, as is common ground, Morgan was arrested and turned informer; how he absconded but was then re-arrested and how in a statement made on his re-arrest he named the appellant as the look-out. It was in that statement that he said that the appellant was in a “Mini, Wolsley Hornet or Riley Elf”. That witness statement was dated 6th January 1982.[20]On the morning of 8th April 1982 the appellant was arrested. Mr Aspden accepted the short summary contained in Mr Sweeney QC’s skeleton argument of what the police records showed.(1) At 5.30 am the appellant was arrested at his home in Erdington by DS Burns, DC Evans and others SCS officers. The appellant said his arrest for the Erdington robbery was a joke.(2) He was told that he was being taken to Chelmsley Wood police station and arrived there at 5.58 am. He was given forms as to his rights but did not request anyone be informed of his whereabouts.(3) From 6.15-7.00 he was interviewed by DS Burns and DC Evans. He said that his arrest was silly and he wanted to see DS Duggan. The officers told him that was not possible. He denied involvement. Morgan’s statement was read to him. He admitted that Dunne was a relative and that he knew Morgan, Mackay, Treadaway and Langdale, but again denied involvement.(4) The same two officers (Burns and Evans) interviewed him again from 7.50-8.10 am. It was pointed out to him that he had insured a Wolsley Hornet at the material time. The appellant again denied involvement, saying in terms that the police would not have had Morgan if it had not been for the information the appellant had given to DS Duggan, who he asked again to see but was refused.(5) The same two officers saw him for a third time from 10.55-11.10 am. The appellant now said that he had been involved in a dummy run for the robbery about two weeks before it took place but had not been involved in the robbery itself and had not been paid £500.(6) At 12.55 pm Mr Neal of the solicitors Pentland and Co rang the police station about the appellant.(7) At 1.22 pm Mr Neal attended the police station and spoke with DCI Speake about the appellant.(8) At 1.35 pm DS Burns and DC Evans spoke with the appellant, who said that he did not want to see Mr Neal, but did want to see the officers’ boss.(9) At 1.40 pm DC Evans spoke with Mr Neal and informed him that the appellant did not wish to see him.(10) At 2.15 pm DCI Speake and DI Cooke spoke with Donald Brown (who had been telling those interviewing him at the police station that DS Duggan had been involved in some of the robberies). Brown asserted that the appellant had told him that Duggan had been setting up jobs for him.(11) From 2.32-255 pm DCI Speake and DI Cooke spoke with the appellant, who accepted that he had been asking for Duggan. The appellant said that the allegation that Duggan was setting up armed robberies for him was untrue. He said that the others had got to know that he had been helping Duggan, and had made threats to him and his family. He suggested that they were now trying to set up the appellant to get their own back. He wanted to see Duggan because he had been giving Duggan information and Duggan would be able to help him. It was his information which had led to Morgan’s initial arrest. He was told that he would not be able to see Duggan. He said that the only information he could give to the other officers was that he was present at the scene but did not know much of what was going to happen and got away quick when the van arrived.(12) From 3.20-4.00 pm DS Burns and DC Evans interviewed the appellant for a fourth time. The appellant said that he now wanted to tell the truth though he was not going to name Dunne. He said that he had been in the Hornet and that he should have had a radio to tell others that the van was coming. He said that he had seen the van coming in the distance and had panicked and driven off. He had not been paid £500. He made a short statement under caution to similar effect.(13) At 4.15 pm (on the instructions of DCI Speake) Mr Neal was rung by DC Evans and told that the appellant now wished to see him. At 5.15-5.50 the appellant was seen by his solicitor.[21]The appellant’s statement produced at this time was in the following terms:- “I, John Lewis Brown, wish to make a statement. I want someone to write down what I say. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence. Just over two years ago I was approached to go on this job. The job was on a Security Express van in High St. Erdington. I can’t remember what day it was. I was supposed to sit in my vehicle that Hornet we were talking about before, and I had to have a walkie talkie and when the van arrived I had to tell them, that was the only part I had to play. Then someone would have called later at my house and give me a drink. What actually happened was on the day of the job I met Morgan and another man who I think was named Treadaway in the High St. at Erdington near to where the job was to come off. They told me where to park my car to take the walkie talkie with me and then tell them by walkie talkie when the van arrived. I was very nervous and when I saw the van in the distance coming towards where the job was coming off I panicked and drove off. I never had any money out of it. I’ve never been involved in anything like this before and never will again. I’d like to say it was the same day that it was mentioned to me that the job actually happened. I’m very sorry for the part that I took and I felt that by driving away I would be redeeming the situation. It only came on me while I was in the car how serious it all was. I have read the above statement and I have been told that I can correct alter or add anything I wish. This statement is true. I have made it of my own free will.”[22]We pause to make certain points. First, Mr Sweeney QC accepts that the above record is false in certain respects. The appellant did wish to see a solicitor during the period prior to his making the confession, but access to a solicitor was denied to him. By the false record the police sought to conceal that fact. Second, the appellant’s case is that he only made the confession he did because the police threatened to expose his position as an informer. It is conceded by Mr Sweeney on behalf of the Crown that the appellant’s role as an informer would not be generally known to members of his family, (although it might have been “suspected”) and that the conduct of the officers involved as demonstrated by the appendix to this judgment makes it more than possible that such threats were made. It is however right to recognise that the position was different by the time that the appellant entered his plea, because statements from Burns and Evans had been served in error in an unedited form on the co-defendants and those statements made clear that the appellant had told Burns and Evans that he was an informer and was seeking special treatment on that account.[23]In the Autumn of 1982 Mackay, who was on remand, also agreed to act as a “super-grass”. He also named the appellant as acting as lookout and identified the appellant as driving “a Riley Elf”.[24]Mr Aspden in his skeleton correctly accepted that the prosecution case against the appellant depended on(1) the evidence of Morgan and Mackay;(2) the appellant’s confession statement and(3) his ownership of the maroon Wolsley Hornet motorcar.[25]There is no contest that, if the appellant had not pleaded guilty and had been convicted by a jury, his conviction would have had to have been quashed. The evidence of Morgan and Mackay was tainted, as is accepted by Mr Sweeney QC. The appellant’s confession was quite unreliable, having regard to the denial of access to a solicitor and the probability that Burns and Evans had misconducted themselves in the obtaining of that confession. Since the evidence relating to the maroon Wolsley Hornet could itself have come simply from Burns or Evans, that would have been too slender a piece of evidence on which to hold that the conviction was safe.[26]However, the appellant pleaded guilty and the question is whether that makes any difference. There was a period during which Mr Sweeney, as demonstrated by his first provisional skeleton argument and thereafter in a second and revised provisional skeleton argument, maintained on what the Crown knew as at the date of preparation of those skeletons that the conviction should be upheld as safe in the light of the plea of guilty. Although no further material had since emerged, Mr Sweeney QC, having further reflected and considered the authorities, when it came to the hearing before us, said that he no longer believed it would be right for him to seek to uphold the conviction as safe.[27]By an additional note, Mr Sweeney made clear that he did not seek to maintain certain points which previously he might have sought to do. We have referred to certain of these already, but to summarise them they are as follows: first, Mr Sweeney accepted there had been an improper denial of access to a solicitor; second, he accepted that when he signed at that stage the appellant could only be said to be suspected by others as an informer rather than be known to be such and third he accepted that DS Duggan had not been prepared to put in writing that he was of the view that the appellant was actually involved in the robbery. But these are not in reality the important aspects of the perfectly proper attitude ultimately taken by Mr Sweeney.[28]He referred us to various decisions of the Court of Appeal, the most important of which was the decision in R v Bhatti (unreported) 19th September 2000, in which the Court of Appeal in a judgment given by Potter LJ, having reviewed the authorities, including R v Togher, quashed a conviction despite a plea of guilty. That was a case in which the expert’s report relied on by the prosecution and on the basis of which the defendant in that case had pleaded guilty, had later been found to be unreliable. Potter LJ reasoned the matter in this way:- “35. On the basis of the plea the appellant, although being aware from his own expert’s report of the possibility of advancing a defence on the basis of a mechanical defect in his steering, whether voluntarily or on advice, waived the advancement of such a defence, not least because of a feeling of moral responsibility. However, on waiver of the appellant’s privilege we have examined the conference and attendance notes kept by his solicitors. We have also received clarification and confirmation by counsel for the Crown and the defence as to the course of their discussions preceding the plea of guilty, as well as on the day when the appellant was sentenced. As a result, we are satisfied that; 1. Had the Crown prior to the appellant’s plea of guilty been aware of the deficiencies of PC Desmond’s report the prosecution would not have proceeded. 2. Equally, and in any event, had the defence been aware that the report was not reliable, the appellant would not have entered a plea of guilty. 3. Had the deficiencies of the report emerged and had the Crown disclosed them at any stage prior to sentence, as we are satisfied would have been done had the truth been known, the appellant would have sought to vacate his plea of guilty. 4. The Crown would have supported the appellant in that application and, had it been successful, would have elected not to proceed. 5. If, contrary to what we are told would have happened, the Crown had proceeded, the defendant would have called his expert witness to attest the possibility of mechanical failure in which event it is possible, and indeed probable, that the jury would have acquitted the defendant. 36. In those circumstances, we are satisfied that the assumption of both the prosecution and the defence as to the reliability of PC Desmond’s report as to the reasons for the accident and his dismissal of the suggestion of mechanical failure in the steering were fundamental to the plea of the appellant, and that the subsequent revelation of the worthlessness of that report and opinion fatally undermine that plea. 37. The power of this Court to set aside the verdict as “unsafe” following a plea of guilty has recently been the subject of consideration by this Court in the context of abuse of process in R v Togher & Ors CA 9th November 2000 in which the Lord Chief Justice, Lord Woolf, reviewed the competing strands of authority represented by R v Chalkley and Jeffries [1998] 2 Cr App R 79 and R v Mullen [ 1999] 2 Cr App R 143 as to whether or not the use of the word “unsafe” in section 2(1)(a) of the Criminal Appeal At 1968 was intended to re-enact or to alter the previous practice of this Court by requiring it to concentrate solely on whether or not a conviction was unsafe (in the ordinary sense of “might be wrong”), thereby circumscribing the power on appeal to quash a verdict on the grounds of procedural irregularity or abuse of process. That question arose in the context of the Court’s consideration whether, where the issue before the Court concerned the fairness of the proceedings, a finding of lack of fairness according to the criteria of the European Court of Human Rights would necessarily involve a conclusion that the defendant’s conviction was unsafe. 38. The court approved and adopted the broad approach which found favour in Mullen. Applying that approach in this case, it seems to us that the unwitting use by the prosecution of the fatally flawed report of PC Desmond, in circumstances where it was acknowledged to be the lynch-pin of the case against the appellant, although not amounting to an abuse of process, was a serious irregularity on which, in substance and in fact, the plea of the appellant was founded, and the subsequent very proper acknowledgment of the position by the Crown has rendered the conviction of the appellant unsafe.”[29]Mr Sweeney informed us that he felt bound to make the concessions recorded in his additional note made available to us on the day of the hearing, which included the concessions at paragraph 3.1 in the following terms:- “(1) The principal evidence relied upon by the prosecution against the appellant prior to his plea was that of Morgan, Mackay and the SCS offers DS Burns and DC Evans. (2) DCI Speake and DI Cooke also had dealings with the appellant on 8th April 1982. (3) In relation to DCI Speake, McKinnon J found as a fact that Treadaway had been cynically denied access to a solicitor. (4) The evidence of Morgan is now tainted by virtue of his being handled by the wholly discredited DS Hornby of the SCS, as per the judgment of the Court of Appeal in Treadaway, and in the light of the concessions made by the respondent in Dunne & Others. (5) The evidence of Mackay is now tainted by virtue of his being handled by the wholly discredited DI Brown and DC Price of the SCS – as per the judgment of the Court of Appeal in the light of the concessions made by the respondent in Dunne & Others. (6) In any event, there is considerable force in any submission that the findings in the civil proceedings in Treadaway, combined with the concessions made by the respondent in Twitchell and in Dunne & others and in Hagans and in Wilson mean that the credibility of the investigation as a whole is undermined.”[30]Mr Sweeney put the matter this way in paragraph 5 of his additional note:- “(1) Had the matters the subject of the concessions in paragraph 3.1 of the Revised provisional Skeleton Argument, and the liability of DS Burns to be cross-examined as to his role in Gordon [our note-see the appendix to this judgment] been known to the Prosecution before the Appellant’s arraignment they would have been disclosed to the Appellant and all other defendants. (2) Had these matters been known at the time, the Prosecution would have offered no evidence. (3) Had these matters emerged in the aftermath of the Appellant’s plea, the Prosecution would not have opposed any application to change plea, and would thereafter have offered no evidence. (4) If the Appellant had fought the case and been convicted absent disclosure of the matters now known, there would be no argument open to the Respondent to support the conviction.”[31]Mr Sweeney in a broad context submitted that there were matters which, if those prosecuting had been aware of them, should have been disclosed to all defendants in the trial or trials about to take place before McCowan J. If they had been, the prosecutions of all those who have now had their convictions quashed by the Court of Appeal prior to this appellant, would simply not have taken place, and it is unthinkable that any prosecution would have been continued against this appellant. Furthermore, even looking at the matter on a narrower basis by reference to this appellant alone, if what is now known had been known by those prosecuting, it is unthinkable that the case against the appellant would have continued or that the appellant would ever therefore have been placed in the position of considering whether to plead guilty.[32]In the light of those concessions properly made by the Crown, it seemed to us that there exist in this case very exceptional circumstances where, despite the plea of guilty, this appellant’s conviction should be quashed. It is for these reasons that we allowed the appellant’s appeal and quashed his conviction. APPENDIX 1 TO THE GROUNDS OF APPEAL OF MR. J.L. BROWN

Summary of Conduct of Officers Involved in Mr Brown' s Case

[1]DS Burns R v Cheetham (30 July 1991) Mr Cheetham was convicted on an indictment of conspiracy to rob. The evidence of DS Burns was challenged due to his involvement in the final interview of Mr Cheetham. In this case, criticism was made of the way in which the interview of Mr Cheetham reads. Mr Cheetham's admissions to the police were scientifically discredited. Although no findings were made against DS Burns, the unreliability of the evidence of other officers involved, was an overwhelming reason for quashing Mr Cheetham's conviction. In his judgment, 'Lord Lane CJ stated:
"The only corroboration provided was that of police evidence. Therefore, the reliability of that police evidence is fundamental to the whole appeal. If it is judged not to be reliable, then the conviction, it follows almost inevitably, will be deemed unsafe and unsatisfactory."
The conviction of Mr Cheetham was therefore quashed on 30 July 1991. R v Smith & Williams (20 January 1994) The appellants were convicted of robbery and conspiracy to rob. Their convictions were based on the evidence of their alleged confessions and signed statements. Subsequently, the officers involved were discredited in later cases where confessions were found to have been fabricated. DS Burns was one of three officers responsible for interviewing Mr Williams. In quashing Mr William's conviction on 20 January 1994 the Court of Appeal stated:
"In considering these cases we have borne in mind that we are not trying the six police officers to whom we have referred and therefore they have not had the opportunity of answering the accusations made against them. We are not, however, concerned with the question whether any case can be made out against them, but rather with the question whether the requisite confidence can be placed in convictions dependent on confessions said by them to have been made by the appellants for which there is no corroboration . . . . Meanwhile this court deeply regrets that these two appellants were convicted on account of the evidence of police officers whose conduct has only been discredited in the later cases to which we have referred. In the particular circumstances of this case, we have come unhesitatingly to the conclusion that the convictions of these appellants, based as they were on the evidence given by these six police officers, were palpably unsafe.” R v Gordon (January 1986) DS Burns alongwith DS James took what was described by the Court of Appeal as "a full, detailed and graphic confession of murder" from Gordon. That confession was subsequently shown to be false when another man, Mr Gayle, confessed independently to officers from another squad that he was responsible for the murder and, by the time of Mr Gayle's trial, prosecuting counsel described Mr Gordon's alibi as "watertight"
. The prosecution offered no evidence against Mr Gordon. In response to the Commission's enquiries, West Midlands Police (WMP) inform the Commission that DS Burns has never been the subject of any formal discipline proceedings. He is said to have retired from the WMP on 20 July 1997.

R v Cheetham (30 July 1991)

[2]DC Evans R v Twitchell (26 October 1999) Mr Twitchell was convicted of manslaughter and robbery. DC Evans and DS Brown had interviewed Mr Twitchell the day after his arrest when Mr Twitchell signed further statements created by the officers admitting to the offences in question and a separate offence of robbery. Mr Twitchell's conviction was quashed on 26 October 1999 in light of the findings against the officers in the case of Treadaway. R v Francis (27 April 1994) Mr Francis was convicted of an offence of robbery. It was alleged that. DC Evans had falsified interview records and as a consequence, gave perjured evidence in relation to this. This interview evidence was subsequently discredited by means of expert evidence and thus could not be relied upon by the Crown. As a result, Mr Francis' conviction was quashed by the Court of Appeal on 27 April 1994. R v Gordon (January 1996) DC Evans was involved in this case (detailed above) along with DS Burns in which confessions were shown to be fabricated by the police against the appellant when an independent confession was made by another man to officers at another police station. Subsequently, when the matter came to court in January 1986, no evidence was offered against Mr Gordon. R v Smith (20 January 1994) DC Evans was one of the officers involved in the Smith case (detailed above) along with DS Burns, in which the Court of Appeal concluded that the conviction of Smith, based on the evidence of the police officers involved, was "palpably unsafe". WMP confirm that DC Evans has never been the subject of any formal discipline proceedings and retired on 9 April 2000.

R v Twitchell (26 October 1999)

[3]DI Cook R v Treadaway (18 November 1996) Dr Cook was present with DS Hornby when Morgan (Mr Brown's co- accused) made his long statements. The evidence of Morgan was clearly tainted in the Court of Appeal's view because of the close contact between him and the officers "'who can no longer be regarded as credible”. In response to the Commission' s enquiries, WMP confirm that DI Cook has never been the subject of any formal discipline proceedings.

R v Treadaway (18 November 1996)

[4]DCI Speake Treadaway (18 November 1996) In the Treadaway case (detailed above) it was alleged that DCI Speake denied Mr Treadaway access to a solicitor and that DCI Speake took a statement from Morgan and gave evidence in his favour when being sentenced. The Court of Appeal was of the view that Morgan's evidence was also clearly tainted due to his involvement with the various officers and thus concluded that the evidence of these officers could not be relied upon. In response to the Commission's enquiries, WMP confirm that DCI Speake has never been the subject of any formal discipline proceedings and retired on 10 January 1988.

Treadaway (18 November 1996)

[5]DC Humphreys In relation to the Commission' s enquiries regarding DC Humphreys, WMP confirm that he has never been the subject of any formal discipline proceedings.38. LORD JUSTICE WALLER: On 15th December 2005 we quashed the conviction of the appellant and we are handing down the reasons for so doing.39. LORD JUSTICE WALLER: The position on publication is that he was at one stage quite anxious about publicity, was he not? I am afraid I do not remember what order we made during the appeal. Was there any restriction?40. MR ASPDEN: My Lord, I am afraid I do not know. I have not spoken to your learned clerk.41. THE CLERK OF THE COURT: Nothing has been marked on the file, my Lord. It would have been if an order had been made.42. LORD JUSTICE WALLER: So we made no reporting restrictions at that stage?43. THE CLERK OF THE COURT: Not from anything that is recorded I can see.44. LORD JUSTICE WALLER: It was listed as "B", was it not? That was in case anybody wanted to make an application, but it did not happen. We are confident it did not happen.45. THE CLERK OF THE COURT: Yes.46. LORD JUSTICE WALLER: Thank you.

Cited in 1 later judgment