Nolan, R v [2006] EWCA Crim 2983

Case No 2005/3497/D3[2006] EWCA Crim 2983
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 9 November 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE TUCKEY
MR JUSTICE HOLMAN
MR JUSTICE HODGE
Between
R E G I N ACrown-v-
Between
PATRICK MICHAEL NOLAN
Computer Aided Transcript of the Stenograph Notes ofWordwave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR P JOYCE QC appeared for APPELLANTMR B HOULDER QC and MR G PATTERSON appeared for CROWN
J U D G M E N T

LORD JUSTICE TUCKEY:

On

[1]27th May 1982 in the Nottingham Crown Court before Lawson J and a jury, after a seven day trial, the appellant, Patrick Michael Nolan, now aged 44, was convicted of murder and sentenced to life imprisonment. On 23rd March 1984 his appeal against conviction was dismissed by this court, presided over by Lord Lane CJ. He now appeals against conviction upon a Reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995 on the grounds that in the light of current standards there are reasons to question the admissibility of the appellant's confession and that new expert evidence casts doubt on the reliability of that confession. The Reference also refers to two cases which it says raise doubts about the interviewing practices of officers from the Nottinghamshire Police at the time.[2]On 23rd December 1980, the 64-year-old victim was found dead in his bed in the house where he lived alone in Nottingham. At post mortem the pathologist found that he had sustained seven to ten blows of moderate force to the side of his head with a weapon which caused his skull to cave in. He had probably been hit whilst he was asleep some time between the 18th and the early hours of 22nd December. There were no signs of a struggle. The weapon used could have been a hammer or a spanner. The house was full of objects of various kinds, but there were no signs of disturbance. The curtains of the house had been drawn and so the intruder must have had some source of illumination to get about in the house without disturbing anything. Entry had probably been gained through a broken kitchen window at the back of the house. The deceased's bedroom was upstairs. There was evidence that he had been alive at lunchtime on 21st December, so it was likely that he was murdered that evening or in the early hours of the following morning.[3]The appellant admitted the murder in a written statement and to the police in a series of interviews in September 1981 when he was 19. This was the only evidence against him. At trial his counsel sought to exclude this evidence on the grounds that it was unreliable and inadmissible. It was argued that there had been breaches of the judge's rules, the appellant had been denied access to his solicitor, the admissions and statement had not been made voluntarily because the appellant had been harassed and oppressed by the police and his statements were at times contradictory and did not fit the known facts. After hearing the police officers on a voir dire, the judge ruled that the confessions were admissible.[4]The history of the interviews is set out at great length in the papers with which we have been provided. It is not necessary to refer to them at length but we will summarise their salient features.[5]In March 1981 the appellant had been one of 6,000 people questioned by police about this offence. By September 1981 he was in borstal for offences of burglary and theft. Acting on information received, the police interviewed him there about the offence and other matters on 16th September 1981. There were three interviews that day during which he denied the murder, although he said something about remembering the "old man at Christmas time". The following day, the appellant saw his solicitor at the borstal when he was advised not to answer questions without a solicitor being present. The solicitor telephoned one of the officers later that day and said that the appellant would decline to be interviewed without a solicitor.[6]On 18th September the appellant was arrested at the borstal on suspicion of murder and taken to the Canning Circus Police Station in Nottingham where he was interviewed four times over a period of just over three hours during the course of the day. His solicitor was in the police station that day but was not informed of the appellant's arrest or that he was being interviewed there.[7]The appellant started the interviews on the 18th with denials, but in the second interview he said that he did remember things but it was "all cloudy" and "comes back in bits and pieces".[8]During the third interview he made his first admission, saying:
"Okay, I did do it. I killed him. It's like a dream, but I don't remember anything else." 9. "... it was dark and I was pissed. He came from nowhere and shouted 'What the fuck are you doing in here?' He reared up at me and got hold of me."
[9]The following day he was interviewed four times over a period of three hours and 40 minutes. In his first interview he started by saying:
"I want to tell you something. I didn't do it. I never killed him. I was making it up." 11. "
On the Sunday before last Christmas I had my dinner at the girlfriend's house and later on that evening I went home. I can't remember if my mam and dad were in but we'd got some drink in house ready for Christmas. I don't drink much usually but I decided to have some whisky and I got stoned drunk. About 1 o'clock I woke up still drunk, and decided to try and walk it off. I went out and walked and walked round Lenton and I remember nosing round a couple of cars and looking at houses but I can't remember which way I walked because I was so drunk. Then I wanted to relieve myself so I went in an alley and when I'd finished I went down the alley to some back yards. It was pretty dark from what I vividly remember. I had a look to see if there was a washing line for clothes, but there wasn't. Then I saw the kitchen window was open and one of the panes of glass was out. I decided to go for curiosity, so I opened the window further and wedged it. I did have a pair of gloves on because it was cold. I clambered in and stood on the sink. There was a lot of stuff about and I think I knocked something over which I think I put back. There was some plates or something in the sink and on the draining board. It was an old fashioned pot sink. I went into the living room and started looking around. There was a table with stuff on it and a cupboard. I went in the top right-hand drawer of the cupboard and found some paper money, all folded up at the back of the drawer. I didn't count it, I just put it in my pocket. Then I decided to have a look upstairs, but I picked up a spanner that was leaning against the wall in the corner of the fireplace. It was open-ended at one end and a ring spanner at the other. It was about 10 inches long and I only picked it up just in case there was anybody upstairs. I carried it in my right hand holding the ring spanner end. When I got upstairs I went into the front room and it was very dark. I started feeling my way around, still drunk, and all of a sudden a man reared up at me. I hadn't seen him till then and he said something like 'What the fuck are you doing?' and he tried to grab hold of me. I just lashed out with the spanner and I remember smacking him three times on his head. There may have been more but I remember three for definite. Then I got scared and ran. I thought he might be coming after me and I fell down some of the stairs in the house and ran out of the back door. I kept on running and fell twice more in the street. I went straight home and threw the spanner in the back yard and went to bed. When I woke up the next morning I thought I'd been dreaming but it was too vivid and I knew I'd done something awful. I looked at my jumper and saw there was blood on it. I put the jumper, and my shirt and trousers and plimsoles in a plastic bag and had to wear some of my brother's clothes. I'd got other clothes of my own anyway because I'd stolen two shirts and a pair of jeans from a washing line... Besides that I had no other clothes. I counted the money out and there was between £40 and £50 in ones, fives and tens. Later on I took the clothes I'd been wearing on the night up to Lynn's and burnt them in the dustbin and left them there. A couple of days later I found the spanner and I decided to get rid of it. I threw it, with the plimsoles into the canal leading onto the Trent. I can show you where. While I was in the house I knocked over a mirror on a dressing table downstairs. Lynn asked me on Christmas Eve whether I'd killed the man and that was the first time I realised I had. I thought it was a bad dream at first but it was too vivid and I'd give my life for his if only he could come back." 12. "Yes, sir, but I'm sorry I can't remember everything. I was drunk you know and it's not a thing you like to remember". The appellant then went with the police to the canal and pointed out where he said he had thrown the spanner. The canal was later searched but nothing was found.[10]The next day, Sunday 20th September, the appellant was again interviewed three times over a period of two-and-a-half hours. At the beginning of the first interview he was asked whether he could remember any more about the incident and he said:
"It wasn't me. I didn't do it. They won't find anything in the river. I never did it. Please let it not be me ... I don't want it to be me."
However, he went on to say: 14. "I know it was me, but I don't want it to be." Later in this and the following interview he repeated some of the things he had said in the statement.[11]So those were the interviews. The police evidence was that at no time during any of them did the appellant ask for a solicitor and they did not offer him one. He was charged with the offence on 17th November 1981 in the presence of his solicitor, and replied, "I didn't do it." He has maintained his innocence from then to this day.[12]The appellant gave evidence at trial. He accepted that he had made a number of the oral admissions and of course the statement but said that they were all lies. He had been abused and hit by one of the officers and his requests to be allowed a solicitor had been refused or ignored, although he knew of his right to have one and to make no comment in interview. He had felt oppressed and was pressurised into making admissions which he did only to get the police to leave him alone. The police had suggested to him that he should say he was drunk to explain why he could not give details of exactly what happened in the house. The police supplied many of the details which appear in the statement, including the fact that the kitchen window was broken, the presence of an old-fashioned sink and that the deceased's bedroom was upstairs. He had made up details of his own about taking the money from the cupboard because he was a burglar and had a similar cupboard at home. The police had told him that the deceased had been hit with a hammer and this gave him the idea of mentioning a spanner.[13]The interviews were not tape-recorded. There was an issue at trial about whether the officers' notes of the interviews were contemporaneous and complete. It seems to have been largely accepted that they were accurate as far as they went but incomplete in the sense that they did not include much of the questioning which the appellant claimed made him feel oppressed and pressurised him into making admissions. It was his evidence that he had not seen any contemporaneous notes being taken.

However, he went on to say:

[14]We do not think any valid criticism can be made of the judge's summing-up at the time. He reminded the jury of details of the admissions which did not fit the known facts. These included the appellant's account of stealing money from a cupboard which, for a number of reasons, seemed very unlikely, and the appellant's account of the deceased shouting at and struggling with him, which was entirely inconsistent with the pathologist's evidence. The judge also warned the jury that in high profile cases of this kind people do make confessions, sometimes detailed confessions, which are subsequently shown to be untrue and so they should approach the confession evidence with the greatest possible care. He directed them that unless they were satisfied that what the appellant had said to the police had been fully and accurately recorded, they should acquit. If they were satisfied of this, they should go on to consider whether the admissions were true or had only been made because the appellant was a victim of oppression.[15]The jury convicted the appellant unanimously after a four hour retirement and, as we have said, this court subsequently dismissed his appeal against conviction.[16]So why should there be any cause to doubt the safety of the appellant's conviction now? Put shortly, the case advanced on the appellant's behalf by Mr Joyce QC is that much has changed since 1983. Modern procedures are much better designed to minimise the risk of false confessions leading to convictions. Here there was real cause for concern because this young man was interviewed over several days without a solicitor, the notes of the interviews were not complete and the appellant was not asked to sign them as representing an accurate record of what was said. The Police and Criminal Evidence Act 1984 and the Code of Practice for the detention, treatment and questioning of persons by police officers made under that Act where designed to avoid such problems. Furthermore, since 1982 much research and learning had been devoted to the psychology of interrogation and the phenomenon of false confessions. Leading experts in this field, Professor Gudjonsson and Dr Craig McNulty, have considered this case and their reports, which we have admitted as new evidence, cast considerable doubt on the reliability of the appellant's confession. So, Mr Joyce argues, there must now be a real doubt about the reliability of the appellant's confession and so his conviction is unsafe and we should quash it.[17]Professor Gudjonsson is a forensic psychologist. He was asked by the Criminal Cases Review Commission to carry out a psychological evaluation of the appellant in order to assess the reliability of his confession. His relevant conclusions were as follows:
"5... at the time of his arrest in 1981, Mr Nolan was functionally illiterate, having a reading age of seven years and nine months... And he appears to have seriously lacked confidence in his intellectual abilities (ie he viewed himself as 'thick'). In these respects Mr Nolan was psychologically vulnerable when interviewed by the police in 1981, and if currently interviewed under the Police and Criminal Evidence Act, a person with clear evidence of illiteracy would be entitled to the services of an Appropriate Adult, especially if having to sign a statement that he could not have satisfactorily read and understood. The presence of an Appropriate Adult and a solicitor do influence the dynamics of the police interview... 9. ... at the time of his interrogation Mr Nolan (a) was suffering from emotional problems, even if they did not amount to a mental illness, which also appear to be reflected in the content of the police statements where he seems highly emotional, impulsive and erratic; (b) could be easily manipulated by others (ie being gullible and naive); (c) did not cope well in stressful situations or with pressure; and (d) was of a compliant temperament. 13. Of concern is the fact that Mr Nolan was interviewed extensively over a period of three days without the presence of a solicitor. There is no reference in the police statements that he was advised of his right to a solicitor in accordance with the Judge's Rules. I am in no doubt that at the time Mr Nolan was very much in need of legal advice, contrary to the assertions of [prosecuting counsel] during his cross-examination of Mr Nolan. 14. The retractions on the mornings of the 19th and 20th September 1981 are important, because they show how Mr Nolan was trying hard each morning after confessing, not very effectively though, to reassert his claims of innocence. The most likely explanation is that he was confessing as a consequence of not being able to cope with the interrogative pressure and when feeling slightly stronger (eg after a night's rest) he immediately retracted the confession previously made. 15. I am concerned about the way in which the confession to the murder of Mr Carver emerged and was described (ie like a dream and 'vision'). This combined with the length of detention, the number of interviews conducted, the absence of independent salient special knowledge about the murder, some wrong and bizarre details, Mr Nolan's probable psychological vulnerabilities at the time, and absence of a solicitor, raise serious concerns about the reliability of the confession he made to the police between 18th and 20th September 1981."
[18]Dr McNulty, who is a consultant psychologist, was also asked to carry out an assessment of the appellant and to comment on Professor Gudjonsson's findings for the Crown Prosecution Service. In his report he noted that 25 per cent of the total interview time was unaccounted for in the officers' handwritten notes which made it impossible to verify what was said or done during those times. He also noted that at least two other people had confessed to the murder. He concluded that the appellant's overall profile was consistent with that described by Professor Gudjonsson and consistent with that of a person who may be susceptible to making false confession when placed under interrogative pressure. He ended his report by saying:
"14.8. My overall opinion on the evidence that I have seen in relation to this case is that there is a strong possibility that Mr Nolan, as a 19 year old man, may have succumbed to pressure in interview and made a false confession to the police. 14.9 When considering Mr Nolan's response to the police interview techniques it may be important to take into account that up until the age of approximately 15 years Mr Nolan had been regularly beaten by his father. His experience of domestic violence may have introduced an abnormally high level of fear and anxiety about physical threat or harm. It is possible that this may have contributed to his perception of the police during interview, possibly causing an additional source of psychological stress and further incentive to escape from the interview situation by making a false confession."
[19]We do not think we need refer to the two cases which involved the Nottinghamshire Police. They are referred to in the Reference but Mr Joyce helpfully said this morning that he did not rely on them for the purposes of his argument. For the record, however, they are Cleary (unreported)) 3rd May 1994 and Richardson [2004] EWCA Crim. 1784. They are decisions on their own different facts and do not, we think, help to decide this appeal. With one exception, they did not involve the same officers as those involved in our case. No assumption can or should be made that all officers in a particular force behave in the same way - see R v Edwards (1991) 93 Cr.App.R 48.[20]Our only task is to consider whether this conviction, 24 years ago, is safe judged against modern standards of fairness and the new evidence which we have admitted - see R v Blackburn [2005] EWCA Crim. 1349. 21. 25. "... the Respondent recognises that the Court is likely to consider that the evidence of Professor Gudjonsson raises real questions as to the safety of this conviction. The Respondent has been unable to find any substantial evidence which detracts from the opinion of Dr Gudjonsson but will assist the court in any way either in cross-examination, or in argument, in relation to those aspects of the evidence which might have compelled the view the jury clearly took and which the Court may wish to examine further."[22]We were grateful for this offer of assistance. It did not seem to us that cross-examination of Dr Gudjonsson would assist, for the simple reason that there is no issue about what he says. As we have said, all points which can be made are set out in the skeleton argument. We have considered them and did not feel it necessary to call on Mr Houlder to elaborate them further for us today.[23]As has been said in other cases of this kind, the courts are more aware today than they were 20 or 30 years ago of the risk of false confession. The procedural requirements introduced by the Police and Criminal Evidence Act were necessary to protect the vulnerable. Expert evidence is often needed to identify those who are vulnerable and assess the reliability of any confession which they make.[24]But even judged by 1982 standards this was a worrying case. Proof of murder depended entirely upon the confession of the 19-year-old illiterate appellant, made in the course of 9 hours of interviews over three days, without a solicitor being present. These interviews were not fully recorded and in them the appellant made, and then more than once retracted, admissions which included things which were obviously untrue.[25]However, judged by modern standards and in the light of the new evidence, we have no hesitation in saying that this conviction is unsafe. By modern standards the interviews were unfair. The Police and Criminal Evidence Act Codes of Practice require that a detained person is advised of his right to consult with a solicitor on arrival at a police station and his right to free legal advice immediately before any interview. Any interview must now be fully recorded. In 1982 the officers' notes of the interviews should have been offered to the appellant for signature.[26]But even without these safeguards, if the jury had heard expert evidence of the kind we have admitted, it would have been bound to affect their consideration of the reliability of the appellant's confession. At the very least, applying the Pendleton test we cannot be sure that they would have convicted if they had heard such evidence. Although the judge gave what we think was, at the time, a perfectly adequate warning about the dangers of false confessions, if expert evidence had been called his warning would inevitably have been stronger, based as it then would have been on cogent expert medical opinion.[27]For these reasons we think the appellant's conviction must be quashed.

Cited in 1 later judgment