IN THE COURT OF APPEAL
CRIMINAL DIVISION
| Royal Courts of Justice The Strand London WC2A 2LL |
||
| 30 July 1997 |
LORD JUSTICE ROCH
MR JUSTICE HIDDEN
and
MR JUSTICE MITCHELL
____________________
| R E G I N A | ||
| - v - | ||
| MICHAEL HICKEY | ||
| VINCENT HICKEY | ||
| JAMES ROBINSON | ||
| PATRICK MOLLOY |
____________________
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____________________ MR E FITZGERALD QC and MR H BLAXLAND appeared on behalf of
THE APPELLANT MICHAEL HICKEY
MR A JONES QC and MISS D ELLIS appeared on behalf of THE APPELLANT
VINCENT HICKEY
MR P O’CONNOR QC and MR M TURNER appeared on behalf of THE APPELLANT
JAMES ROBINSON
MR M MANSFIELD QC and MR J WOOD appeared on behalf of THE APPELLANT
PATRICK MOLLOY
MR J ROBERTS QC, MR W COKER QC and MR P CLEMENT appeared on behalf
of THE CROWN
____________________
HTML VERSION OF JUDGMENT
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Crown Copyright ©
Miss Poole and Mr Jones were out that afternoon, having been invited out the day before for a drive by a friend with a car. According to the friend and Mr Jones, no third person was told of the outing. Before leaving the house Mr Jones had secured the doors and windows. Examination of the scene by the police showed that entry to Yew Tree Farm, was by way of the living room window, following an unsuccessful attempt to force one of the three outside doors of the house. It was evident that that door had subsequently been opened from the inside and that rooms in the house both on the ground floor and on the first floor had been searched and property taken from the house.
Carl Bridgewater’s body was found in the living room of the farm house lying on a sofa in a position which suggested he had been sitting in the middle of the sofa when shot, the shot striking the left side of his lower face causing him to fall to his right so that his head ended on the right arm of the sofa. His body would not have been visible to someone entering the living room from the hallway of the house in which there were the stairs leading to the first floor.
The Convictions and Sentences
Between the 8th October and the 9th November 1979 four men were tried and convicted of killing Carl Bridgewater. They were Patrick Molloy, then aged 51 who was convicted of manslaughter; James Edward Robinson then aged 45; Vincent James Hickey, then aged 24; and Michael Joseph Hickey, Vincent Hickey’s cousin, then aged 18, who were convicted of murder, Count 1 in the indictment. In addition all four men were convicted of aggravated burglary. The sentences imposed were 12 years’ imprisonment for manslaughter on Molloy; detention during Her Majesty’s pleasure for murder on Michael Hickey; life imprisonment with a minimum recommendation that 25 years be served in respect of both Vincent Hickey and James Robinson for the murder. Molloy and Michael Hickey were sentenced to 8 year terms in respect of the aggravated burglary and Vincent Hickey and James Robinson to 10 years’ imprisonment in respect of that offence which was Count 2 in the Indictment. In addition Michael Hickey and James Robinson were convicted on their pleas of guilty of Counts 4 and 5 in the indictment, both offences of robbery in which a firearm was used. Michael Hickey was sentenced to 12 years’ detention in respect of each of those offences, those terms to run concurrently with each other and his other sentences. Robinson was sentenced to 15 years’ imprisonment in respect of each robbery, those terms to run concurrently with each other and with the sentences for the murder and the aggravated burglary. In addition a 6 month suspended sentence for burglary and theft was activated in respect of Robinson, that to run concurrently with the other sentences. Vincent Hickey pleaded guilty to Count 3 in the indictment, obtaining property by deception, and received a sentence of 12 months’ imprisonment concurrent. Count 5 in the indictment for robbery in so far as it concerned Vincent Hickey was left on the file on the usual terms. Patrick Molloy pleaded guilty to two offences of burglary in Counts 6 and 7 in the indictment and was sentenced to 2 years’ imprisonment concurrent on each.
A fifth man John Burkett was charged in Count 4 in the indictment, pleaded guilty to it and was sentenced to 12 years’ imprisonment for that offence of robbery.
The Appeal Process
On the 2nd December 1981 this court refused applications for leave to appeal against conviction made by the Hickeys and Robinson. Patrick Molloy had submitted applications for leave to appeal, the grounds being of his own composing, which did not come before the court because Molloy died in prison in June 1981.
On the 15th October 1987, the Home Secretary referred the cases of the Hickeys and James Robinson to this court under Section 17(1)(a) of the Criminal Appeal Act 1968. The reference was made as a result of retractions of evidence given at the trial and fresh evidence relating to alibis advanced by the Hickeys and Robinson. On the 17th March 1989 this Court dismissed the appeals.
On the 26th July 1996 the Home Secretary again referred the cases of the Hickeys and Robinson to this court for two reasons. First, that it was not until December 1994 that it was disclosed to those acting for the appellants that unidentified fingerprints found at the scene of the crime included three usable prints taken from Carl Bridgewater’s bicycle one of which was Carl Bridgewater’s and the other two could not be matched to any appellant. Secondly, that there had, on the face of it, been breaches of the Judges’ Rules in relation to the questioning and detention of Patrick Molloy.
Subsequent to that referral, expert evidence became available which supported Patrick Molloy’s assertion to those acting for him at his trial that before making a written statement confessing to having been present at Yew Tree Farm on the 19th September 1978 when Carl Bridgewater was killed, he was shown a statement purporting to be that of Vincent Hickey. That evidence was based on electrostatic document analysis of the written statement which had been Exhibit 54 in the appellants’ trial. The expert document examiners, who are also handwriting experts, expressed the view that the impressions on the top page of Exhibit 54, from a statement purporting to be made by Vincent Hickey, may well have been in the handwriting of one of the officers who was interviewing Patrick Molloy at the time he made Exhibit 54. Moreover the impressions appeared to show the signature of Vincent Hickey but comparison of that apparent signature with signatures known to be Vincent Hickey’s showed that signature to be a forgery which could have been written by one of the other officers interviewing Patrick Molloy at the time he made Exhibit 54. On the 21st February of this year, this court learned of this evidence and received a memorandum from the prosecution that the prosecution could see no sensible explanation for the impressions on the first page of Exhibit 54 other than that which Molloy’s instructions to his solicitor provided and that, consequently, the proper approach for the prosecution to these appeals would be that the explanation given by Molloy to his solicitor of how he came to make his statement was the truth. It followed that Molloy’s confessions had probably been obtained by deceit practised by police officers and were, therefore, inadmissible as evidence. Mr Roberts for the Crown went on to concede that without Molloy’s confessions to being present at Yew Tree Farm, there could not have been a prosecution of Molloy on Counts 1 and 2 in the indictment. So far as Molloy was concerned, the Crown could see no proper argument to be addressed to this court in opposition to the contention that his conviction must be regarded as unsafe.
Mr Roberts, turning to the appeals of the Hickeys and Robinson, referred us to the case of Paris & Others (1993) 97 Cr App R 99, where the then Lord Chief Justice, Lord Taylor said:
“Whilst a defendant may have to accept the admission of evidence relevant only to another accused, where they are jointly tried, he should not have to suffer the admission of prejudicial evidence in the trial which is not admissible against anyone.”
In the light of that principle Mr Roberts said that the Crown could see no answer to the proposition that the trial had been fundamentally flawed and did not feel able to argue that the convictions of the Hickeys and Robinson were safe.
Having heard counsel for all four appellants, this court pointed out that it alone had power under section 2(2) of the Criminal Appeal Act 1968 to quash a conviction and that this court could only do that if we thought that the conviction was unsafe. We expressed our judgment that it was right for us to hear evidence in open court from expert witnesses who had examined the impressions left on the first page of Exhibit 54. We indicated that we could not at that time see any reason why the evidence of those experts who had examined Exhibit 54 should not be accepted and that, if accepted, it would follow that the appeal of Patrick Molloy was bound to be granted. We indicated that we would entertain such other points as counsel for the appellants wished to raise, together with the Crown’s answers to such points and give a reasoned judgment. In the light of the concessions made by the Crown, we considered it right to grant the appellants unconditional bail.
At a subsequent hearing we indicated that the sole function we had to fulfil was to decide in the case of each appellant whether his convictions on Counts 1 and 2 in the indictment were safe or unsafe. If we concluded that the convictions were unsafe then the convictions would be quashed and the presumption of innocence which exists in favour of all unconvicted persons would be re-established. We were not going to carry out an inquiry as to whether the appellants were in fact innocent, we being neither empowered by the Act nor armed with the necessary powers to do so.
We have heard submissions which satisfied us for reasons which we have already given and which we do not need to repeat in this judgment, that an appeal on behalf of the late Patrick Molloy can be entertained by us, that the administrators of his estate have power to waive the legal professional privilege which existed between Molloy and those acting for him at his trial, and that they have done so to the extent set out in the affidavit of Nicholas Alan Molloy, the son and one of the personal representatives of Patrick Molloy, dated the 10th day of March 1997.
Yew Tree Farm
Yew Tree Farm was owned and worked by Miss Poole and her brother Jack until about 1964 when the farm was sold. Part of the sale agreement was that both Jack and Mary Poole would be able to live in the house rent free for their lives. Mr Fred Jones went to live at the farm in July 1973. On the 5th December 1977 Jack Poole died. The farm is close to the A449 Wolverhampton to Kidderminster Road. The access road to the farm is from Lawnswood Road which itself is a road leading from the A449 to the village of Wordsley. The farm house is to the south east of the junction between Lawnswood Road and the A449. In September 1978 it was separated from the road by a hedge and an orchard. Access to the farm was from Lawnswood Road and, for vehicles travelling towards Wordsley would involve turning right into a farm road and then a short while later turning right to follow the drive leading to the house and a garage. In addition there were to the south east of the house derelict farm buildings surrounding a yard. One of these buildings, the nearest to the house and garage was an old pigsty.
The house consisted of two storeys. Access to the house was by one of three doors. The house had been built to face south with the front door on the south side. However the drive led to the north east corner of the house and normal access was through what had been the back door of the house where the drive met the house. The ground floor consisted of two porches, one for the front and one for the back doors. The old front door led through its porch into the hall of the house from which stairs went to the first floor. The back door led into a porch. A person entering the house through the back door would have ahead of him a door leading into a washroom, to his left a window and to his right a door leading into the living room of the house. From the living room of the house access could be got to the hall and from the hall to three further rooms on the ground floor being a bedroom, a billiard room and a study. In addition there was a kitchen, access to which was directly from the living room. The window of the living room through which entry to the house had been gained was on the south aspect of the house, that is to say the old front of the house. An approach to that window would have involved a person who had used the drive to the house going round the house to the side furthest from the drive. It was the back door of the house which showed the marks of an attempt to force it. At the scene the police were to find a spade with traces of paint on it which matched the paint of the back door. The marks on the back door could have been made by that spade. The third outside door into the house was a door to the left of the back door as approached from the drive, which gave direct access to the washroom.
On the first floor of the farm house were five bedrooms and a bathroom. Evidence by a Scenes of Crime Officer and the statements of Mr Fred Jones established that all the rooms in the house with the exception of the bedroom on the ground floor and possibly the washroom on the ground floor had been searched by the intruders. Items of property had been taken, mainly of relatively small size and therefore easily portable. Some of the items were personal items, such as cufflinks, and pocket watches. Others were household items which could be broadly described as antiques, such as tea pots, kettles, a warming pan, decanters and candle sticks. Some of the items taken were found abandoned in the grounds of the house, for example a tea pot was found in the orchard and a brooch was found in the enclosed yard. Carl Bridgewater’s bicycle was found in the open part of the old pigsty, the spokes of the wheels of that bicycle being slightly damaged.
The intruders missed several items of value during their search. First, in the bedroom on the first floor occupied by Mr Fred Jones, there was in the chest of draws in a box a large brown envelope containing a leather wallet which in turn contained £200 in cash. In the living room in a cupboard was a 12 bore shotgun together with 12 or 13 cartridges. Forensic examination established that the gun had not been fired for some time, and the cartridges contained a type of wadding different from that in the cartridge that had killed the newspaper boy. In the kitchen or pantry there was a safe which contained silverware which Mr Jones valued at over £700. The pantry door had been locked and the pantry had not been entered. These items were undisturbed.
In four of the five bedrooms on the first floor drawers had been pulled open searched and left open whereas in the fifth bedroom the drawers of the chest of drawers had been carefully removed and stacked neatly on top of each other.
The interior of the house was examined for fingerprints as were the items found in the garden and Carl Bridgewater’s bicycle. In addition the ground round the house was examined for footprints and tyre prints. Nothing which connected the four appellants to Yew Tree Farm was found. It would appear that no identifiable footprints or tyre prints were found. Two identifiable but unidentified fingerprints were found on the frame of the bicycle on the tube leading from the handle bars to the housing for the pedal mechanism. They were not the fingerprints of any of the four appellants.
Eye Witnesses
Various witnesses passed along Lawnswood Road in vehicles that afternoon. Mr Mario Sabetta gave evidence that he drove along Lawnswood Road between 3.25 and 3.30 and saw a blue Ford estate car parked in Lawnswood Road on the opposite side of the road to Yew Tree Farm. That vehicle was facing towards Wordsley as if it had come from the A449. Mr Sabetta told the jury that he had seen two men coming from the back of the vehicle and crossing the road and that the smaller of those two men was carrying a firearm. Mr Cross from the County Council’s Highways Department said he arrived at Lawnswood Road at about 3.45 pm and saw a light blue estate car of, he thought, the Cortina type, in the access road to Yew Tree Farm. A neighbour of Mr Fred Jones and Miss Poole, a Mrs Jones said that at about 4 o’clock she had looked across to Yew Tree Farm from her house and noticed a blue estate car which she was confident was a Ford estate car. Its tailgate was raised but no one was in sight. Mrs Jones decided to have a closer look. The vehicle was alongside the hedge leading up to the back door and that door itself was open wider than usual. A Mrs Saville who was pushing her granddaughter in a pram was in Lawnswood Road at about 4.10 pm and noticed a vehicle in the drive to Yew Tree Farm. It was partly behind a hedge so that she could not see all of it. It looked to her like a Transit van. It was mid-blue in colour. A Mr Edwards, a chargehand with the Severn Trent River Authority was travelling down Lawnswood Road at about 4.15 pm. He saw the newspaper boy going towards Yew Tree Farm. As he rounded the bend he saw a light blue vehicle in the driveway of Yew Tree Farm.
Mrs Jones, the neighbour, told the jury that she had looked towards Yew Tree Farm about half an hour after her sighting of the estate car with its tailgate raised and saw that it was no longer there. The evidence of a Mr Wakelam was that he drove along Lawnswood Road shortly after 4.30 pm and he seemed to remember a vehicle coming from the direction of Yew Tree Farm towards Wordsley which he thought was a tatty-looking and dirty light blue van, possibly a Bedford type and as much as 10 years old.
A Mr Madeley told the jury that he regularly drove along Lawnswood Road past Yew Tree Farm in the afternoon. On either Monday 18th September or Tuesday 19th September, he could not say which, he had driven along Lawnswood Road between 4.25 and 4.45 pm and had seen a Ford Cortina estate car containing a driver and passenger pull out from the farm access in a sharp manner. The vehicle was oldish and darkish in colour. Miss Wendy Stagg a school teacher drove along Lawnswood Road between 4.40 and 4.45 pm. She saw two vehicles at the farm entrance, one a plum coloured car and the other a blue estate. They were in Lawnswood Road only a few feet from the entrance to Yew Tree Farm facing towards the A 449. The blue estate was stationary but looked as though it had just reversed out of the farm entrance. It was in front of the plum coloured car. There were two, or possibly three, people in the estate car. She did not notice anyone in the plum coloured car. Another man on the passenger side of the estate car was apparently talking to its occupants. The lower part of that man’s body was hidden from her. A Mr Phelps said that he passed the entrance to the farm at between 4.55 and 5.00 pm. As he passed the entrance, approaching the A449 he was obliged by other vehicles to stop momentarily. He looked down to the access drive and saw a car which he thought was almost certainly an estate car. He described it as being dark blue and thought it was a Ford. The vehicle was waiting in the access drive just back from the pavement and it contained two, possibly three, occupants who were male. The evidence of a Mr Mills was to the effect that at 4.45 pm he saw a very light blue car, either a Peugeot or a Ford Cortina estate, on the A 449 which seemed to have just pulled out from Lawnswood Road or from a lay-by just past the entrance to Lawnswood Road. There were three men in the estate car, two in the front and one in the back in the middle leaning forward between the two front seats. The jury heard two further witnesses, a Mr Stephen Bridgewater, not related to the newspaper boy, and a Mr Clarke. Stephen Bridgewater said that at about 4.50 pm he had driven along Lawnswood Road and had seen a blue Ford Transit van parked in Lawnswood Road facing Wordsley with its offside wheels on the pavement. Mr Clarke said that he had passed Yew Tree Farm at about 5.05 or perhaps up to 5.15 and had seen a medium-blue vehicle parked in the farm driveway at an angle. That vehicle was an Austin or Morris J4 van, medium blue with windows in the side. He saw standing next to the vehicle a man of heavy build with light, shoulder-length hair. This evidence points to the following conclusions:
1. There was more than one intruder (the number of rooms searched, different methods of searching pieces of furniture containing drawers and the evidence of passers-by of seeing more than one man.)
2. Carl Bridgewater arrived at Yew Tree Farm at about 4.20 pm and entered the farmhouse rather than leaving the papers outside the back door. He was shot some uncertain period of time after his arrival at the house. His shooting led to the search of the house by the intruders ceasing and a hurried departure.
3. Whoever searched the house and took items of property probably left no fingerprints inside the house and did not leave any fingerprint on any item taken and abandoned, so they were, almost certainly, wearing gloves or some other protection on their hands against leaving fingerprints.
4. The persons responsible were able to dispose of property taken without the police being able to trace any stolen item.
5. It was possible that more than one vehicle was used and probable that a light blue Ford Cortina estate was used.
6. If the witnesses Miss Stagg, Mr Phelps and Mr Mills were correct on their sightings and timings, then the intruders were still at Yew Tree Farm at a time between 4.45 pm and 5.00 pm. However if the neighbour Mrs Jones and the witness Mr Wakelam were correct, then the intruders would have left the farm by 4.30 pm or thereabouts, and the interval of time between the newspaper boy arriving at the farm and his being shot would have been relatively brief.
The pathological evidence in the case revealed that the victim had not been crying nor were there any other signs of distress preceding death, which must have been instantaneous, which may be a further indication that the interval between the boy’s arrival at the farm and his being shot was relatively brief.
The Four Accused
In 1978 James Robinson was living with Carol Bradbury and her three children at 35, Wolstan Croft, Weoley Castle, Birmingham. He and Patrick Molloy had known each other for some 10 years. In April 1978 Patrick Molloy had gone to live at 35, Wolstan Croft. They were regular customers of the California public house in Weoley Castle. They also drank at the Dog and Partridge, a public house in Selly Oak. Vincent Hickey and Michael Hickey were regulars at the Dog and Partridge, where the dominant personality was Joe Hickey, Michael Hickey’s father. In 1978 Vincent Hickey was married. At the end of August of that year he left his wife and went to live at 35/4, Lower Beeches Road, Northfield, Birmingham, the flat of Linda Galvin. Linda Galvin a divorced woman lived there with her daughter Stephanie then aged 12. Also lodging in the flat was a 32 year old man Alan Murray who was employed as a coal man by a coal merchant. Murray suffered from tuberculosis. Michael Hickey, Vincent Hickey’s cousin did not live at that flat, although he did on occasions stay the night there. One of the issues at the trial was whether in September 1978 James Robinson and Patrick Molloy were associates of Vincent and Michael Hickey, or whether they simply knew each other by sight, the close association between James Robinson and the Hickeys not commencing until after James Robinson’s release from custody on the 23rd October 1978.
Another issue at the trial was the knowledge of Vincent and Michael Hickey of that part of Staffordshire in which Yew Tree Farm was located. Vincent & Michael Hickey worked for Joe Hickey, going to properties, the roofs of which required some repair, knocking on doors and seeking to persuade the occupier of the particular property to let them repair the roof for a price. The work would actually be done by other men whom the Hickeys “employed” and who would be regulars at the Dog and Partridge. It was the prosecution’s case based on the evidence of another member of the Hickey family, Reginald Hickey, a cousin of both Vincent and Michael Hickey, that Vincent and Michael Hickey knew the Wordsley area of Staffordshire having worked that area. It was the Hickeys case that they had never worked in that area.
Before examining the case presented against each appellant at the trial, it is helpful to trace events involving the appellants following the 19th September 1978. On Wednesday 20th September 1978 James Robinson and Patrick Molloy were involved in the theft of a car in the Harbourne district of Birmingham, that car being taken between 3 and 3.15 pm on that day. The car, a Ford Cortina estate, was later used in the burglary of butcher’s premises of the Co-operative Society in Tamworth during the night of the 20th/21st by James Robinson and Patrick Molloy. In the early hours of the 21st, the police approached the vehicle containing property stolen in the burglary. James Robinson was arrested but Patrick Molloy walked away from the vehicle prior to the police discovering the stolen property and made good his escape. James Robinson remained in custody until the 23rd October when he was dealt with for those offences by a Magistrates’ Court. If the matter had not been dealt with at that hearing, Michael Hickey’s father, Joe Hickey, and a bar maid at the Dog and Partridge, Helen Johnston were at the court prepared to stand surety in support of an application for bail.
Following Robinson’s arrest on the 21st September 1978, a single barrelled sawn-off shotgun which Robinson had bought from a man called Anwar Mohammed in August 1978 through a contact, David Kane, was taken from its hiding place in the flat in which Robinson lived to the flat of one Susan Bennett by Patrick Molloy, together with an air pistol and number of shotgun cartridges, all of No 6 shot. Those items were hidden by Susan Bennett’s husband in the loft of their flat. Later those items were returned to Carol Bradbury’s flat and hidden under the floor of Patrick Molloy’s bedroom. In November 1978 Carol Bradbury again asked Susan Bennett to have those items, which she did for a time. They were then returned to James Robinson, who hid them under some bushes on waste ground at the junction of Barnes Hill Road and Middle Acre Road, Weoley Castle.
Prior to that Vincent Hickey had been involved in an offence of deception at Chapel Farm on the 30th September 1978. At the relevant time Vincent Hickey was living with Linda Galvin at Linda Galvin’s flat. Also living there was Alan Murray. Murray had delivered coal to Chapel Farm, a house occupied by elderly people. He told Vincent Hickey and Linda Galvin about the farm. They went to the farm on the 30th September 1978 and represented themselves as agents of the coal merchant telling the elderly occupants of the farm that if they paid for their coal in advance they could obtain coal for the coming winter more cheaply. The occupants, believing this, paid over £352.
On the 14th October Vincent Hickey was questioned concerning his whereabouts at the time of the Yew Tree Farm offences. This was part of routine questioning of known criminals by the police investigating the Carl Bridgewater murder. Vincent Hickey on that occasion in a written statement, Exhibit 59 gave a detailed but untrue account of his movements on the 19th September.
On the 24th November 1978 an armed robbery was committed at Tesco’s store, Castle Vale. The three robbers were armed; two with baseball bats and one with a single barrelled sawn-off shotgun. The shotgun was the shotgun which became Exhibit 25 at the appellants’ trial, the property of James Robinson. During the course of the offence, the manager of the store started to follow the robbers as they left the store, picking up a baseball bat dropped by one of the robbers, and the shotgun was fired over his head. The robbers were James Robinson, Michael Hickey and a man called John Burkett, the fifth man named in the indictment.
On the 30th November there was an armed robbery at Chapel Farm. The weapon was again Exhibit 25. The two robbers who entered the farm house and threatened the occupants and obtained money from them were James Robinson and Michael Hickey. There was evidence of the involvement of Vincent Hickey as the driver of the vehicle, Linda Galvin’s car, which conveyed the robbers to and from Chapel Farm, although Vincent Hickey’s involvement in this offence was never the subject of a trial in a court of law. During the appeal in 1989 it was admitted on Vincent Hickey’s behalf that he had been involved in the Chapel Farm robbery as the driver of the car.
The Police Interviews
On the 4th December 1978 Vincent Hickey was interviewed in his solicitor’s presence at Bromsgrove Police Station, concerning the offences of deception and robbery at Chapel Farm. At the end of the interview Vincent Hickey was arrested for both those offences. During the interview he admitted knowing Alan Murray and Linda Galvin and that Alan Murray was a coalman. Otherwise his replies were either denials of knowing anything about Chapel Farm or “no comment” answers. He refused to sign the notes made contemporaneously of that interview. The interview had started at 1800 hours and ended at 1826. At 2255 hours on the same day Vincent Hickey was seen in the CID Room at Bromsgrove Police Station by the officers who had interviewed him earlier. He apologised for the “No Comment” answers he had made and told the officers, “off the record”, that he had been involved in the offence of deception at Chapel Farm but not in the robbery. He was reminded of the caution. He named Michael Hickey as being involved in the robbery; said that “Our Michael’s a psychopath” and claimed that Michael Hickey had been told about Chapel Farm by Linda Galvin. Vincent Hickey went on to say that Michael Hickey and others had committed other offences as well, describing the robbery at Tesco’s as one of those offences. The others involved in the Tesco robbery had committed other offences with yet another man who had dropped out of the team and Michael Hickey had replaced him. Vincent Hickey offered to point out to the police where one of the other robbers lived. Vincent Hickey told the officers “Our Michael says the older one did the Bridgewater murder”. Vincent Hickey claimed that Michael Hickey had put to the older one that he had committed the Carl Bridgewater murder and the older one had become rattled. Vincent Hickey refused to identify the person he was referring to as “the older one”.
Vincent Hickey was interviewed again the following day starting at 1050 hours, in the CID Office of Bromsgrove Police Station, and the interviewers were DCI Knight and DS Dickens. He was cautioned. Vincent Hickey admitted knowing of the plan to rob Chapel Farm and lending the perpetrators a car. At the end of the interview he was told he would be charged with robbery and deception. He was charged with those offences at 1420 hours by DS Dickens. He was then taken before magistrates and remanded under Section 105 (5) of the Magistrates’ Court Act, 1952, that is to say that he was remanded in police custody for three days.
At 2000 hours that day Vincent Hickey agreed to point out to the police where the “older one” lived, having first been cautioned. At 2100 hours he took DCI Knight and DC Benting to a building containing Carol Bradbury’s flat and pointed out her flat to the police. He also pointed out another flat in another building where he said his cousin Michael Hickey was then hiding.
In interview on the 6th December at 1600 hours at which the officer in charge of the investigation into the murder of Carl Bridgewater, DCS Stewart was present, Vincent Hickey said that the gang consisted of “James Robinson, the other one and the one with bad teeth who was also a “junkie”.” Michael Hickey had been involved with James Robinson and the other man but had only been with them a short while. He thought that Michael Hickey had replaced somebody in the team. The second interview with Vincent Hickey on the 6th December at Bromsgrove Police Station began at 1715 and ended at 1730 hours. Vincent Hickey identified the one with the bad teeth, the junkie, as a man called Poyner. He was shown a photograph of James Robinson and identified him and said that James Robinson had had his head shaved at about the time of the Carl Bridgewater murder. He was also shown a photograph of Patrick Molloy and identified him as “the other one”.
At 1900 hours that day James Robinson was arrested for the Chapel Farm robbery by DS Robinson and DS Hornby. Cautioned he said “Robbery, not me, that’s not my scene”. He was told his home would be searched because it was thought that Patrick Molloy and “the junkie” would be found there. He was reminded of the caution. Robinson denied using guns. At 1935 James Robinson was told that the search was in progress and said: “You’re too late”. James Robinson told the police that Patrick Molloy had come with him to the Police Station with instructions to wait for 15 minutes and if Robinson was not released to “get on his bike and tell everyone that James Robinson had been nicked”. James Robinson also told the police that someone had “Bubbled him” and he asked for time to think. At 2320 hours that evening James Robinson was shown a shotgun cartridge found during the search of Carol Bradbury’s flat and said “That’s fucked it”. The robbery at Tesco’s was put to James Robinson and he replied “No, just a minute, you’ll be putting me down for the paper kid’s murder shortly”. He claimed to have an alibi for the Carl Bridgewater murder. He asked who had identified him as being in the Tesco robbery.
On the 7th December at a quarter to one in the morning James Robinson said to DS Robinson and other officers having been reminded of the caution, that he was about to tell the police about the gun. At 0105 hours James Robinson pointed out where he had hidden the gun which was recovered by DC Price with a bag of 11 cartridges, a hood, a pair of gloves and a muslin cloth. At 0125 hours James Robinson told the police that he would inform on the Hickeys “because they are bastards” and must have informed on him, but not on the other men involved in the Tesco and Chapel Farm offences who had not informed on him. James Robinson told the police that Vincent Hickey, Michael Hickey and himself had committed the Chapel Farm robbery and that the Tesco robbery had been committed by Michael Hickey himself and another man. James Robinson then wrote his own statement concerning those offences. At 1745 that day James Robinson was taken to the Bromsgrove Police Station by DS Robinson and DI Taylor. Up until that time he had been held at Harbourne Police Station.
Meanwhile on that day, the 7th December, Vincent Hickey was seen by DI Fowlie, DS Rogerson and DC Crotty in the interview room at Redditch Police Station at 1320 hours. This interview was to last until 1700 hours. During the interview Vincent Hickey told the police that Michael Hickey had named James Robinson as the murderer of Carl Bridgewater. Michael Hickey had also bragged about holding up a supermarket and being one of the team useful with a gun. Vincent Hickey said that Michael Hickey had not been at Yew Tree Farm because he had only met James Robinson “a couple of weeks ago”. Vincent Hickey told the police of an incident where Michael Hickey had said to James Robinson when James Robinson had been playing pool in the California Public house “You done the paper boy didn’t you Jim?” and that James Robinson’s reaction to that accusation convinced Vincent Hickey that the accusation was true. Vincent Hickey had added that there was another person, Paddy, who had committed offences with James Robinson.
On the 8th December Patrick Molloy was arrested at 0825 hours, for the burglary at Tamworth, cautioned and taken to Bournville Lane Police Station. At 1100 hours he was interviewed by DS Harrison and DC Davies who cautioned him and put the Tamworth butcher’s burglary to Patrick Molloy who denied it.
At 1220 that morning Vincent Hickey was taken to Redditch Police Station. During the journey from Bromsgrove to Redditch police stations Vincent Hickey said he needed help over the Chapel Farm effort. He also said that James Robinson had good reason to make a written statement. At 1240 Vincent Hickey was interviewed by DS Lessemun and DC Millington. He repeated the story of Michael Hickey challenging James Robinson that James Robinson had killed Carl Bridgewater. He offered to tell the police the whereabouts of his cousin Michael Hickey if he, Vincent Hickey, were granted bail. He told the police officers that he drove the others to Chapel Farm and dropped them off down the road and floated until they came back to the car across the fields. He indicated that he could know something about the Carl Bridgewater murder, but he would want to be out of both the Chapel Farm offences and the murder himself. The police record of this interview was that he said “I want out of both the Romsley blagging and the murder”. That statement was not given in evidence before the jury, because of the Judge’s ruling that the Crown were not to lead evidence concerning Chapel Farm. Vincent Hickey claimed to know who did the actual shooting. He told the police that there were two cars, not, one used in the Yew Tree Farm offences and that they should check on a blue van which was stolen and left in Redditch full of stolen antiques. The police would not clear up the Yew Tree Farm case without him. He could put the police onto the Cortina estate, which had been cut up. Vincent Hickey told the police that he was nearly on the job himself; that the car was his and that he had two identical estate cars, one of which a car driven by a police woman had collided with and the second of which was now cut up.
During this interview at 1405 Vincent Hickey spoke to DCI Knight on the telephone, who was at Bromsgrove Police Station. Vincent Hickey wanted an assurance that the Chapel Farm robbery would be dropped against him before he spoke about the Carl Bridgewater murder. Following that telephone conversation Vincent Hickey told the police that he had had a conversation with the murderer; that the offence at Yew Tree Farm was planned by Hickey himself. The thieves had been looking not just for antiques but for gold, namely sovereigns and Spade Guineas. At his trial, Vincent Hickey disputed that he had told the police that the thieves were looking for Spade Guineas. Vincent Hickey said that Carl Bridgewater had been shot accidentally. He had not been at Yew Tree Farm but he knew the four who were. The police had the killer but did not know it. The blue van with the white roof rack was back with its owner. The farm had no hallway. You went through the back door and the living room was on the right. This drew the comment from the police that Vincent Hickey could not have known the layout of that part of the farmhouse unless he had been there. Vincent Hickey then repeated the pool table story of Michael Hickey confronting James Robinson with being the killer of Carl Bridgewater. Vincent Hickey said that he had rung the Bournville Police Station to give information about the killing but had rung off when he was asked to identify himself. Vincent Hickey said that after the murder he was told the gun had been thrown away. However when he was in London in court, James Robinson, Patrick Molloy, Michael Hickey and “the druggy” committed the Tesco’s robbery with a gun that could have been the same gun as used in the murder and the same gun as the police had recovered, but he, Vincent Hickey, had not seen the gun the police had recovered. He told the police he had seen the murder gun about two days before the Yew Tree Farm offences. He described the gun as being about 18 inches to 2 feet long with silver engraving above the trigger. It is to be observed that this description did not fit Exhibit 25, the gun recovered by the police with the assistance of James Robinson. Vincent Hickey admitted being the driver on the Yew Tree Farm offences. He complained towards the end of this interview of headaches and that he was “cracking up”.
That same day Patrick Molloy was interviewed by DCI Watson, DS Harrison and DC Davies at Wombourne Police Station starting at 1440 hours. He was cautioned. Initially Patrick Molloy denied that he was involved in the Tamworth Co-operative Meat burglary on the night of the 20/21st September 1978. He was asked about his relationship with James Robinson. He then admitted the Tamworth offence. He told the police that he was scared of James Robinson and “That lot”; that James Robinson stole a lot of vehicles; that James Robinson had an empty garage; that James Robinson had a receiver of stolen property who lived near the California public house. Patrick Molloy then admitted being involved in the burglaries of a butcher’s shop in Northfield and of the Stonehouse public house in Northfield with James Robinson and John Burkett. It was the burglary of the butcher’s shop in Northfield that had financed James Robinson’s purchase of a shotgun. Patrick Molloy also told the police that after the Tamworth burglary he had gone to Leeds to get out of the way. Patrick Molloy went on to tell the police of the Tesco robbery which he said involved James Robinson, John Burkett and Michael Hickey, observing that Michael Hickey was only about 16 or 17 years of age but was “Bloody mad”, and that he knew that James Robinson, Vincent Hickey and Michael Hickey had been arrested for tying up some “old dears” in the country. At 1830 hours DS Harrison and DC Davies raised with Patrick Molloy for the first time the Carl Bridgewater murder. Between 1900 hours and 1955 hours Patrick Molloy made a statement under caution, Exhibit 53 in which he admitted involvement in the offences at Tamworth and at Northfield, and told the police of the sawn-off shotgun and cartridges that James Robinson had purchased, and of the planning of the robbery at the Castle Vale supermarket.
At 1745 hours DCS Stewart and DCI Watson interviewed Vincent Hickey who was in a depressed state and sobbing. He was reminded about the rules whether he need say anything or not. He said that he could tell the police all they needed to know to clear the murder, and asked what the police could offer him. He was told by DCS Stewart that he was making no promises of any kind. Vincent Hickey told them that he had been in touch with the Bournville Police Station by telephone, for the purpose of giving information about the Carl Bridgewater murder. He also said that he could help on the Carl Bridgewater murder but he wanted immunity. He said that if he told them about the killing, he would be charged. This interview was in the detention room at Redditch. It lasted until 1915 hours and therefore the account given of it by the police officers must have been a brief summary of all that was said. A caution was given although not in full. Vincent Hickey was again interviewed on the 8th December, this time by DI Fowlie, DS Lessemun and DC Millington the interview starting at 2050 hours and ending at 2350 hours. During the course of this interview Vincent Hickey asserted that he made sure he told the police enough to get them interested but not too much for them to come back at him. He agreed he was there and knew all there was to know about the Yew Tree Farm offences. He repeated that he thought the gun had been got rid of after the Yew Tree Farm offences and that he did not see the gun at Chapel Farm. He also repeated that he had seen the gun a couple of days “before the kid got shot”. He asked if the gun recovered had engraving on the side as he had described to the police.
There was an interview under caution of James Robinson by DCS Stewart, DCI Watson and DCI Jarvis at Bromsgrove Police Station starting at 2115 and ending at 2210 hours. James Robinson was said to have shown alarm at the suggestion that he had been stealing antiques. He admitted stealing jewellery and candlesticks but denied stealing antiques. James Robinson said that the gun used at Chapel Farm was not loaded. A loaded gun had been used for the robbery at Tesco’s by John Burkett.
Vincent Hickey was interviewed again on the 8th December 1978 the interviewing starting at 2350 hours. The interviewers were DS Lessemun, DC Millington and DI Fowlie. The place was the CID Office at Redditch Police Station. During the course of that interview Vincent Hickey said “Yes I can’t live with it. I wanted to tell someone before”. That was why he had rung Bournville Police Station. He had confided in Joe Hickey. He suggested that if he obtained bail it would help him to make a statement. Vincent Hickey said that Michael Hickey when he challenged James Robinson in the California Public house did not know that he, Vincent Hickey, had been involved in the Yew Tree Farm offences. Vincent Hickey said he knew that Yew Tree Farm was going to be a robbery in reply to a question “Did you know they took a gun to Yew Tree Farm?” Vincent Hickey was told that he had admitted an active part in a robbery where a 13 year old boy had been murdered and replied “I didn’t shoot him”.
On the 9th December, James Robinson was interviewed by DCI Knight and DS Dickens at Bromsgrove Police Station at 0005 hours. He told the officers that he did not know what his movements were on the 19th September 1978. He was told by the officers to think. James Robinson then said “I think I was out thieving with Patrick Molloy.” He was asked what sort of offence they were committing and said that he didn’t know, he couldn’t remember. That was a relatively short interview.
Vincent Hickey was again interviewed by DS Lessemun and DC Millington at 1045 hours on the 9th December, the Saturday. This interview lasted until 1345 hours. Vincent Hickey was cautioned by DS Lessemun. It began with Vincent Hickey being reminded that he had said that Yew Tree Farm was going to be a robbery and not a burglary and that he had said he had seen the gun two days before. This was a planned robbery and if the old folks had not been out, violence would have been used. Vincent Hickey replied “You might be right”. During the course of this interview, Vincent Hickey said “It was an accident” and “You don’t think he was killed on purpose? The gun went off accidentally”. He told the police not to forget that he had put them on to James Robinson. He said that the police knew that oral admissions, “verbals” were no good as evidence. DS Lessemun put to Vincent Hickey that he was in the house, to which Vincent Hickey replied “I may have been”. A short while later Vincent Hickey admitted being there in the house. He said “I’m too fat to get through the window” and “I walked in”. He also told the police “The person who went in the farm first did not shoot the kid”. He was asked how he knew that and answered “I was there, wasn’t I”. He admitted that he had done more than the driving and that he had gone to the house first to do the knocking to see if there was anybody in. He was asked if he had expected anyone to be in. He then said that he had said more than he had intended to say. The police said that they knew Vincent Hickey had been in the house because he knew there was no hallway. Vincent Hickey sought to explain his knowledge that the living room was to the right as one entered the house through the back door as being either a guess or because somebody had told him.
DS Lessemun at one point in the interview said “You’re on the job but you won’t say who killed the boy”. Vincent Hickey replied “I’m sure you know. I said enough for that”. Towards the end of the interview Vincent Hickey, in reply to DC Millington’s statement “You chose to go on the robbery at Yew Tree Farm not us”, said “Yeah and Romsley (here referring to Chapel Farm). I reckon I could get a deal on Yew Tree Farm because I know you can’t prove it without me, but you can still do me for Romsley”.
There was a further interview with James Robinson by DCI Jarvis and DC Eccleshall which began at 1400 hours on that Saturday afternoon and ended at 1820 hours. James Robinson was cautioned. In that interview James Robinson told the police how he had bought the gun; that when he was arrested on the 21st September he gave the wrong address until he was told that the gun was safe. He told the police that he kept the gun under the washing and later under his mattress. He identified the receivers of stolen property who he used. He told the police of himself and Patrick Molloy firing the gun at a plastic ball. He said that Carol Bradbury had told him that Patrick Molloy had hidden the gun under the floor boards. He said that he purchased the gun from Spider Mohammed for £20. It was already sawn-off. He had hidden it at the place to which he had taken the police because he had been tipped off that some of those involved on the Chapel Farm robbery had been arrested. The tip-off had been sent by his mate Joe Hickey. James Robinson admitted that Vincent Hickey had been to his flat once. He referred to Vincent Hickey in obscene terms and maintained that Vincent Hickey had informed on him. James Robinson told the police that he had been asked by Vincent Hickey and Michael Hickey to go to Chapel Farm. He was asked why Patrick Molloy was not at Chapel Farm and said that Patrick Molloy had become angry and had gone on about the similarity with the Yew Tree Farm offences. Patrick Molloy had said that the law would think it could be the same team that had committed both sets of offences. When James Robinson was told that Vincent Hickey had incriminated him in Carl Bridgewater’s murder, he said “I suppose he said he was just the driver and I pulled the trigger. I suppose he has been trying to do a deal with you”. At that point James Robinson had become upset and said “Poor little baby, they must have blowed half his head off.” James Robinson then said that Michael Hickey had probably fouled himself at Yew Tree Farm when the gun had gone off. He added that he would not be surprised if Vincent Hickey and their team had done it. Patrick Molloy was interviewed for the first time by DC Perkins and DC Leeke on the 9th December 1978 at 1800 hours. He was cautioned and questioned about Carl Bridgewater’s murder on the basis that he was a known associate of James Robinson, Michael Hickey and Vincent Hickey who had committed a very similar crime at Chapel Farm. Patrick Molloy said that he was frightened of those three men. He admitted committing offences with James Robinson and Vincent Hickey when firearms were taken. He maintained that the taking of the firearms was just to frighten. He didn’t know how the Hickeys set up their offences. They just picked him up and took him to the place where the offences were to be committed. Patrick Molloy said that his method of operating was to be tidy and that was so, even when he had had a few drinks.
Somewhat later that day at 2003 hours James Robinson was interviewed again by DCI Jarvis and DC Eccleshall at the interview room at Droitwich Police Station. The initial conversation took place between DC Eccleshall and James Robinson without caution. During that initial conversation James Robinson said that Vincent Hickey and Michael Hickey were capable of killing Carl Bridgewater. At 2014 hours DCI Jarvis entered the interview room and reminded James Robinson of the caution. During the course of the interview that followed James Robinson suggested that Vincent Hickey was saying what he had been saying to the police because he and Michael Hickey had probably done it and “wanted a fall guy for the shooting”, and had named him because he, Vincent Hickey, knew that James Robinson had a shotgun. James Robinson was asked to say where he was on the 19th September but said that his mind was a blank. He was told that Carol Bradbury was being interviewed and asked what she would say he and Patrick Molloy had been doing on the 19th September. James Robinson replied “Fuck knows” and then said that he would make a statement admitting the offence but the police would have to give him the details. That interview ended at 2135 hours.
On the same evening at 2300 hours Patrick Molloy was seen by DC Perkins and DC Leeke at Wombourne Police Station in the cell where he was being held, with DS Robbins making a note in the passageway of the cells. During that interview having been cautioned, Patrick Molloy said that he had been made to hold the shotgun on one offence which he was not asked to identify. He also looked the officers in the eyes and said that he did not commit the Yew Tree Farm offences.
On Sunday the 10th December, the first interview was one with Patrick Molloy beginning at 1130 hours. The interviewers again were DC Perkins and DC Leeke with DS Robbins in the passageway of the cell block making notes. The officers cautioned Patrick Molloy and asserted that he was on the brink of telling them something. They also pointed out to Patrick Molloy that if James Robinson or Vincent Hickey made admissions he, Patrick Molloy, would be in a very serious situation. He was urged to look after himself.
The next interview in point of time on that Sunday was that of Vincent Hickey by DS Lessemun and DC Millington beginning at 1220 hours. Vincent Hickey said that he would not make a statement. He said that it was his van, the blue van with the white roof rack used for the offences. Joe Hickey had got rid of the van after the murder a couple of months earlier. Vincent Hickey was told that Joe Hickey had been asked if Vincent Hickey had confided in him about being present at Yew Tree Farm and that Joe Hickey had said that he did not believe the police officers as to what Vincent Hickey had been saying but if it was right, Vincent Hickey was finished as far as he was concerned. Vincent Hickey then said that he was not there, meaning Yew Tree Farm, and had been messing the police about. Vincent Hickey maintained that he had guessed the layout of the inside of Yew Tree Farm.
Patrick Molloy was seen again at 1315 hours on that Sunday by DS Walker and DS Robbins with DC Leeke in the corridor taking notes. He was told by DS Walker to remember that he did not have to say anything and to think of himself. Patrick Molloy said that he was getting confused and denied involvement in the Yew Tree Farm offences. At 1500 hours that day Patrick Molloy was again seen by DI Turner with DS Robbins in the corridor taking notes. DI Turner reminded him of the caution. He told DI Turner that he was worried but was not frightened of the police. At 1535 hours DS Walker entered the cell and DI Turner left. Patrick Molloy told DS Walker that he was in some terrible trouble; that he needed some advice and asked to see the “Boss”. DS Walker believed that Patrick Molloy was referring to DCS Stewart and said it would take some time for the “Boss” to be contacted. Patrick Molloy then asked to see “the chap with the beard on his own”. The chap with the beard was a reference to DC Perkins. At 1540 hours DC Perkins saw Patrick Molloy alone in his cell but with DS Robbins and DC Leeke in the corridor with, it was maintained, DS Robbins making notes. He was reminded of the caution. Patrick Molloy said to DC Perkins “I was there at the farm when the lad got shot, but I didn’t know about the gun until after. I was told that it was Jimmy who did it but it was an accident”. He went on to say that he was upstairs; he heard a bang, came downstairs and heard James Robinson say that it went off by accident. He, Patrick Molloy, then ran out. Patrick Molloy named Vincent Hickey, Michael Hickey and James Robinson. He said that the vehicles used were a blue Cortina estate and a van which James Robinson borrowed from someone at the Dog and Partridge which had a white top. The vehicles were parked away from the farm. Patrick Molloy and Vincent Hickey walked to the farm first. James Robinson broke in through a window and let the others in. He had gone upstairs into a bedroom. The boy had been on the settee. He was shot in the head. He, Patrick Molloy, had left in the Cortina estate with Vincent Hickey and James Robinson. Michael Hickey had driven the van. Both vehicles had been at the top of the drive when Patrick Molloy got into the estate car. He had been dropped off by the Plough and Harrow public house. The oral interview was then followed by the writing of a statement by DC Perkins at the dictation of Patrick Molloy. The interview was said to have lasted from 1540 to 1600 hours and the writing of the statement from 1600 hours to 1620. In the statement Patrick Molloy described the position of the shot boy on the settee. He also described the neat stacking of drawers in one of the bedrooms, which he said he had done. He maintained that he had not seen the boy’s bicycle. After the statement, Patrick Molloy gave a correct demonstration of how Carl Bridgewater had fallen after being shot. He said that the others had worn woollen hats pulled down.
At the same time that Patrick Molloy was being interviewed by DC Perkins, initially alone and then subsequently by DC Perkins and DC Leeke at Wombourne Police Station, Vincent Hickey was being interviewed again by DS Lessemun and DC Milllington at Redditch Police Station. He said that he would make a statement. DS Lessemun started to take down a statement Exhibit 55, on a witness statement form. Vincent Hickey said that he would make a statement about Yew Tree Farm and Chapel Farm and asked that DCI Knight be told to see if he would give Vincent Hickey bail. Vincent Hickey was told that the officers were not there to discuss bail or Chapel Farm but just what Vincent Hickey knew about the murder committed at Yew Tree Farm. Vincent Hickey told the officers then to go on and a witness statement was commenced on which Vincent Hickey’s address was given as that of his wife although at the time of his arrest he had still been living with Linda Galvin. That statement became Exhibit 55 at the trial. That statement was abandoned because the story got out of sequence and a second witness statement which became Exhibit 56 was commenced at Vincent Hickey’s dictation. After the conclusion of that, Vincent Hickey told the police in answer to questions that he had put the police onto James Robinson and the police would get no more from him. He was asked to read the caption at the top of the statement and sign it. He declined to sign either the caption or the statement.
Patrick Molloy was seen by DCS Stewart, DCI Watson and other officers in the cell at Wombourne Police Station at 1845 on that Sunday evening. It was a five minute interview in which Patrick Molloy told DCS Stewart that his statement Exhibit 54 was true. He denied pulling the trigger.
At 2110 hours that evening James Robinson, having been reminded he was still under caution, was shown by DCS Stewart and other officers a copy of Patrick Molloy’s written statement Exhibit 54. He said that it was a fairy story. He still could not remember what he had been doing that afternoon. He also said “They’re giving me the right concocted little set up”. He told the police officers “Patrick Molloy had access to that gun”, and “They could have gone those three”. DCS Stewart and DS Lycett left the interview at 2145 hours. James Robinson wanted to see Exhibit 54 again because he wanted to know what Patrick Molloy said about getting into the farm. James Robinson made the observation “The dirty bastards …. they’ve done me, they’ve hung drawn and quartered me”. He rejected a suggestion by the police that he was frightened of the Hickeys and maintained that they had reason to be frightened.
At 2130 hours DS Lessemun, DC Millington and DI Fowlie saw Vincent Hickey at Redditch Police Station where they told him that others were implicating him. Vincent Hickey said that he was in the Dog and Partridge at the time of Carl Bridgewater’s murder. He was reminded of the admissions which he had made. He observed “I see what you mean. I’m in the shit ain’t I”. He asked if the others had said who had pulled the trigger. He was told that someone had made a statement about the murder naming him and the others and replied that that couldn’t be because he wasn’t there. At one point he said that after he had seen that statement the police could take him to Wombourne Police Station and he would make a statement saying that he had pulled the trigger. He asked for a solicitor, but, when the police said that they would get him one observed, that the police wouldn’t be able to at that time on a Sunday. He was told that the officers hadn’t seen the statement, but that they knew more or less what was in it. It named Patrick Molloy, James Robinson, Michael Hickey and himself as the four persons involved, to which Vincent Hickey replied “Now I know it’s a load of rubbish, Mickey wasn’t there”. He was asked how he knew that if he hadn’t been there to which he replied that he just knew it. He was reminded that he had described the inside of the farm and said that it had been on the television. He became agitated and angry according to the police evidence. There was this exchange:
DS Lessemun: “Vince, if you are involved now is the time to say so. If you didn’t kill that boy say so”.
Vincent Hickey: “I didn’t kill him”.
DS Lessemun: “Fair enough but I still think you can assist”.
Vincent Hickey: “Yes I can, I’ve told you in that statement this afternoon”.
He was told that it was Patrick Molloy who had made the statement and his response was to say: “I wasn’t there”. DI Fowlie entered the interview room with a copy of Exhibit 54 which Vincent Hickey read twice before throwing it on the table and saying it was not true. He was then asked about his movements on the 19th September and said that he hadn’t a clue where he had been that day. He also maintained that he had had only one Cortina estate. At the end of the interview Vincent Hickey observed that he should get a pat on the back for this because it was he “who had put the police onto it all”.
James Robinson was again shown Exhibit 54 that evening in an interview which started at 2227 hours with James Robinson being cautioned by DS Rogerson and went on until 0210 the following morning. James Robinson said that Exhibit 54 was a fairy tale. He could give no reason why Patrick Molloy should make it. He agreed that Patrick Molloy had never informed on him before. He was asked whether it had been his gun that had been used at Yew Tree Farm and replied “No, well it could have been”. Adding “Patrick Molloy knows where it is kept under the floor boards in Patrick Molloy’s room”. The police said that that answer was shouted. James Robinson admitted that he, Patrick Molloy and Vincent Hickey had agreed not to admit Yew Tree Farm but to admit other serious offences. He said that Chapel Farm had been Vincent Hickey’s job but different because the gun was not loaded. The police then compared the Yew Tree Farm and Chapel Farm cases and James Robinson became agitated. Those passages were omitted from the evidence that went before the jury. He said that if he admitted Yew Tree Farm it would be 30 years and he wouldn’t admit it. He was then asked to say where he had been on the 19th September but said that he was unable to say. Vincent Hickey’s story about Michael Hickey confronting him whilst he was playing pool at the California Public house was put to him and he replied “They’re all liars”.
Vincent Hickey was interviewed again on Monday 11th December at 0810 hours. It was put to him by DI Fowlie that he had said he was out drinking until 4 a.m. every morning because he couldn’t live with it, referring to the murder, and those were not the actions of an innocent man. To which Vincent Hickey replied “No, it isn’t”. He was asked to explain how the basics of the statement made by Patrick Molloy were the same as the admissions he had made and replied that it was a coincidence and that Patrick Molloy’s statement was bent and worthless.
On that Monday morning, Patrick Molloy appeared before the Seisden Magistrates’ Court and was remanded into police custody until the 14th December. He had been charged with the Tamworth meat burglary at 1050 hours by DS Harrison. He was unrepresented. He was not granted Legal Aid. The inference to be drawn from statements of members of the Magistrates’ Court staff that accused persons would be asked if they wished to be represented by a solicitor, and if they said they did wish to be represented, they would be granted legal representation, is that he did not apply for legal representation on that appearance.
The same day James Robinson was interviewed at 1130 hours the interview ending at 1345. James Robinson again complained that the police were trying to pin Carl Bridgewater’s murder on him and told them to get paper and pen and he would make a statement admitting it. When the police queried whether he would make such a statement James Robinson said “That’s what you want isn’t it. I’m admitting it but I didn’t do it”. During the course of this interview Robinson was again asked where he was on the 19th September and said that he could not remember. He suggested that he might have been committing another offence. At 1215 hours James Robinson asked for time to think. The interview was resumed at 1310 hours and James Robinson said that he thought Carol Bradbury may have been in hospital and he may have been visiting her or he may have been drinking. He asked the police what Carol Bradbury had said and was told that Carol Bradbury told the police that James Robinson had picked her up from hospital that morning. James Robinson said that he had had a blue Ford Cortina estate about that time. He told the police that if Patrick Molloy had had a job on he would have gone with him. He was then asked if he did the murder and broke down completely. James Robinson told the police that he and Patrick Molloy had discussed the Carl Bridgewater murder after the Chapel Farm offences because Patrick Molloy had pointed out the similarities and told James Robinson that he would “make himself scarce for a bit”.
At 1140 that morning Patrick Molloy was interviewed by DCI Watson and DI Wordley in the Surgeon’s Room at Wombourne Police Station. Following being cautioned, Patrick Molloy told the police that the four had met at the Dog and Partridge. He thought it was Vincent Hickey who had asked him to go to Yew Tree Farm. He had gone in a Ford Cortina with Vincent Hickey and Michael Hickey. He said that he had arrived at the Dog and Partridge before James Robinson. James Robinson had arrived at about 1 o’clock. It was about 3 o’clock that Vincent Hickey and Michael Hickey had come into the lounge. Vincent Hickey had spoken about there being coins at Yew Tree Farm. He thought the car had been a Ford Cortina estate. He had been wearing a green pullover and trousers which he had lost subsequently. James Robinson had been wearing trousers, a shirt and a woollen cap. James Robinson always wore gloves on a job although he had not had gloves at the Dog and Partridge. James Robinson went in a van following the estate car. They had driven to about 100 yards from the farm. All the others put caps on. He and Vincent Hickey went first. Vincent Hickey knocked on the door. James Robinson then came and got in through the window and opened the door for him and Vincent Hickey. He did not see a gun. The van he thought was dark blue with a white top. Patrick Molloy was vague about the layout of the house. He said he had gone upstairs into a bedroom. It had a sideboard and a bed. He pulled the drawers out of the sideboard and stacked them. He had only gone into one room. There was someone else upstairs, he could tell from the noise. There was a shout “There’s someone coming”. He heard the door open. Then he heard a bang. He rushed downstairs, saw someone on the settee. Somebody said it was an accident. He didn’t see a gun. They rushed up the road, got into the car. He was threatened to keep quiet.
Patrick Molloy was seen again that day in the Surgeon’s Room at 1450 the interview ending at 1655. Again he was cautioned. On that occasion he told the police that he had heard someone say “Someone’s coming”. Then some muttering and then a bang. When he had got downstairs Michael Hickey had the gun. Vincent Hickey and Michael Hickey were there. The young chap was slumped on the settee. There was a strong smell of cordite. He didn’t know where James Robinson was. He thought James Robinson was upstairs. He, Patrick Molloy, had been wearing gloves which he had disposed of. The car was 50 to 100 yards away. He had nearly fallen over the push bike about 5 yards from the front door. He had been the first out. He thought Vincent Hickey said that the bike was hidden. He couldn’t say about there being a dog. He didn’t remember someone having a go at the door of the house. Patrick Molloy then asked the police how they knew that he, Molloy, had been at Yew Tree Farm. He confirmed that he had been there. He knew nothing about James Robinson having two shotguns. He had had nothing from Yew Tree Farm. He thought bags containing things from Yew Tree Farm were in the vehicles and were not dumped on the journey back to Selly Oak. At 1600 hours DCI Watson left the interview. Patrick Molloy then said that they looked over the hedge at Yew Tree Farm and had a good view; the farm was just below them. He then named the others who were present in the Dog and Partridge when the job was discussed. He said that he could not be sure that those persons had been there on the 19th September. The interview ended with Patrick Molloy confirming DI Wordley’s notes of the interview.
The next interview on that Monday was of James Robinson by DC McClelland and DI Taylor. It took place at Droitwich Police Station. James Robinson had made a written statement concerning the Chapel Farm and Tesco offences. He was cautioned and questioned about a burglary at Bartley Green and admitted it. He then said “Look about this kid’s murder, it looks bad for me doesn’t it?” He told the police he was perfectly calm at that time but he could not think where he had been on that afternoon. He was told that all he had to do was to remember what he had done when he had left Carol Bradbury in her house. James Robinson then began to cry and said that he couldn’t remember what he was doing that afternoon. DCI Taylor then said that it appeared to him that James Robinson didn’t wish to remember; that it was a kind of mental block. There were further exchanges during which James Robinson became upset and then he said “Leave me alone. If I have done this thing and have a mental block, leave me alone for a bit and I will see if I can remember that day”. That interview ended at 1805.
At 1910 James Robinson was interviewed again by DCI Taylor, DS Hornby and DC McClelland. That was in the Doctor’s Room at Droitwich Police Station. This interview lasted until 1945 hours. James Robinson told the police that his mind was still a complete blank. He said that if the Hickeys had put the job to him that day he would have gone with them; he would not have thought twice, “but what gets me, I can’t remember”. The police then went over the events of the morning of the 19th September. James Robinson repeated that he had had a blue Cortina estate. And then he said “But if I had been out all night I can’t understand why I didn’t go to bed in the afternoon”. James Robinson was told that Carol Bradbury was saying that he had gone out with Patrick Molloy. James Robinson said that he couldn’t remember but if he was given paper and pencil he would admit it. He was told that he would have to describe Yew Tree Farm and he said “Well perhaps it will come back to me if I can think about it a bit more”. Again in that interview James Robinson had been distressed and had sobbed.
DCI Watson and DI Wordley interviewed Patrick Molloy again at 1140 hours on the 12th December 1978 in the Surgeon’s Room at Wombourne Police Station. He was cautioned by DCI Watson. Patrick Molloy said that it was not true that James Robinson had done the shooting. James Robinson had not been in the room and it was Michael Hickey who had the gun. The gun did not seem to be sawn-off. Everyone had worn gloves. Molloy referred to the practise of some burglars using their socks instead of gloves. James Robinson had had a nail bar. The interview ended at 1210 hours.
On the 14th December, Patrick Molloy was again remanded by the Magistrates to police custody until the 18th December. He applied for and was granted Legal Aid, his application form being filled in by DS Harrison. The solicitors he chose, Argylle’s, were informed, probably the next day. Argyle’s were informed by a member of the court staff that Patrick Molloy was charged with the theft of meat and that there was no need for them to attend on the 18th as Patrick Molloy would just be remanded. On the 15th December, Argyle’s instructed agents to attend the Magistrates Court on the 18th.
On the 14th December Patrick Molloy said that he was prepared to help the police on the route taken to Yew Tree Farm but was very hazy. At 1120 hours Patrick Molloy was taken in an unmarked police car. He showed the police where he said James Robinson had disposed of the air pistol, woolly hat and gloves in brambles in Somery Road, Weoley Castle. Patrick Molloy told the police that two days after James Robinson was released on the 23rd October he had got rid of a fawn duffel coat which had a button missing, a biggish, brown button. A button had been found at Yew Tree Farm on the windowsill of the living room through which access had been gained, but that button did not fit the description given by Patrick Molloy of the button missing from the duffel coat. Patrick Molloy said that he had been drinking and was hazy about the route and may have slept during the journey. There had been no talk about the job during the journey that he recalled. He then said that he thought someone had tried to force the door before James Robinson had gone round the house and got in through a window and opened the door. They had used a nail bar. He had gone up stairs. Vincent Hickey had told him to look for coins. He had stacked the drawers. He indicated that the boy had been slumped on the settee on his left side. Michael Hickey was holding the gun. Michael Hickey had not had the gun in the car. He, Patrick Molloy remembered treading on a bike just outside the door. He went back to the car. He was the first. James Robinson must have got into the van. Michael Hickey had two bags, one yellow, one dark down by his feet. In the car he had been threatened. He had been dropped off in Selly Oak.
Initially on this journey Patrick Molloy failed to recognise Yew Tree Farm or Lawnswood Road. The police car had been stopped in Lawnswood Road. Patrick Molloy told driver to park further up the road and said that that could have been where they had parked on the 19th September.
There was a further interview with Patrick Molloy between 1110 and 1135 hours on the 15th December by DI Wordley at Wombourne Police Station. He was reminded that the caution still applied. He was asked about going to the hospital where Carol Bradbury was on the morning of the 19th September. They had been in the area of the hospital because James Robinson had some stolen meat to sell. They were in a Ford Cortina which was either brown or grey. That had been stolen the previous night. It had not been safe for them to take it home. The estate they went to Yew Tree Farm in had been blue. Carol Bradbury had not been very well when they left her, having taken her home from the hospital. They had then gone to the California Public house.
At 1530 the same day Patrick Molloy handed to DI Wordley written notes about his movements on the 19th September and said “That’s what I can remember. I cannot remember much about the afternoon.” DI Wordley pointed out that in his notes, Patrick Molloy gave an account different from his earlier account. Patrick Molloy said that that was what he could remember. He said that Robinson had kept the gun under his mattress. He had it for about three months. It had a pistol grip. It was bored out under the trigger guard to allow the gun to fold in another inch. He didn’t think that it was James Robinson’s gun that Michael Hickey had been holding when he, Patrick Molloy had come downstairs. That interview lasted 10 minutes. On the 16th December Patrick Molloy was seen by DCI Watson at 1700 hours. He said that he was worried. He was trying hard to get things clear. He asked if someone had said he had fired the gun. He told the police that Vincent Hickey would have said that “to protect his own”. Patrick Molloy then drew a beard on one of the photofit pictures and said “That could be Vincent Hickey couldn’t it?” Patrick Molloy then suggested that it was Vincent Hickey and conceded that another photofit could have been a picture of himself.
Patrick Molloy was interviewed again on the 17th December starting at 1140 and finishing at 1215. Having been reminded of the caution, he identified James Robinson’s shotgun by the cut out groove in the stock. He said that he had no idea from whom James Robinson had bought the gun. It was not the gun that he had seen at Yew Tree Farm. He referred to two of his mates using Exhibit 25 on two other jobs and nearly killing a man with it. When James Robinson had been arrested in the early hours of the 21st September he, Molloy, had hidden the gun and about 20 cartridges in his room.
On Monday 18th December at 0900 hours Patrick Molloy was remanded in custody to Shrewsbury Prison by the Magistrates. His solicitor’s agent was not present at court, having been told by a member of the Court staff that the hearing would be at 1000 hours. That was clearly an innocent mistake, arising from a breakdown of communication between two members of the Court staff, and had nothing to do with the police. The solicitor was able to interview Patrick Molloy at Wombourne Police Station at 1100 hours prior to his transfer to prison. Prior to this interview, the solicitor was told by DCI Watson that Patrick Molloy had made a statement admitting involvement in the Carl Bridgewater murder. During the interview the solicitor recorded Patrick Molloy telling him this:
“I have been questioned here for about 4 days and nights. One of the men concerned is Vince Hickey. The detectives here brought a statement to me signed by Vince Hickey admitting that he had been involved. He named me as being there. He also named Robinson as being there. I was very upset over this. He also has a brother or cousin, I am not sure, called Mickey Hickey. A few weeks ago these two Hickeys called for Jim. I don’t (sic) know the details until afterwards. They went to this farmhouse and held up three old people and robbed them of £300. I felt mad about this man putting my name up. As far as I can say I was not there but I made a statement saying I was there but I wasn’t there.”
The solicitor then went on to record Patrick Molloy’s account of his movements on the afternoon of the 19th September inaccurately writing November for September. Then the note continues:
“I have told them I was there; that Jim broke in and let us in and I went upstairs and that after a while I heard somebody knocking the door. I heard a bang and ran downstairs and saw Mick Hickey holding a gun. I told them Vince Hickey was also there. Vince Hickey made a statement and said I was there and that Jim was also there. I have no idea why he put my name up. It almost forced me to put that statement. I am sure that if Vince was in it then Mickey would be in it also.”
Michael Hickey was arrested at 1815 hours on the 20th December 1978 for being involved in a number of armed robberies. He was interviewed that evening at 2035 hours being told by DCI Watson that they were enquiring into Carl Bridgewater’s murder. He was cautioned. He admitted knowing James Robinson and that he had been asked if he wanted to go with Vincent Hickey and James Robinson to Chapel Farm. He made admissions about that offence in which he said that it had been organised by Vincent Hickey, that he had had a mask on and that James Robinson had had a mask, gloves and a gun. He made admissions concerning a robbery at Tesco’s saying that was James Robinson’s job and that John Burkett had fired during the robbery. He denied involvement in Yew Tree Farm. He claimed to remember the 19th September 1978 being the day when Dave Waller’s wife had had a baby and that he had been in the Dog and Partridge until 4 pm. He had then gone to his mother’s house by taxi and then to his girlfriend’s house where he and his girlfriend had quarrelled. He returned to the Dog and Partridge at 6.30. When it was put to him that he had left the Dog and Partridge before closing in the afternoon he insisted that he had stayed there until 4 pm. He declined to make a written statement about the robberies or about his movements on the 19th September.
When interviewed a second time the following day, the 21st December, at 1015, having been reminded of the caution by DS Harrison, he insisted that the account he had given of his movements on the 19th September in the first interview was correct. He said that he would not make a statement until he had seen his solicitor and asked whether he would be coming that day. Those interviews were conducted at Wombourne Police Station.
On that Thursday Patrick Molloy was again before the Seisdon Magistrates’ Court at 1100 hours. Before that he had had a conference with his solicitor at Wombourne Police Station. That conference followed a discussion between the solicitor, Mr Wiggall and DCI Watson in which Mr Wiggall was told that Patrick Molloy’s statement was with the Director of Public Prosecutions and could not be produced at that stage, and that an application for bail would be opposed. This duly happened and bail was refused because the police enquiries were continuing and Molloy would be at risk of being attacked if released. In the second conference, Patrick Molloy told his solicitor that from the Friday 8th December he had repeatedly asked for a solicitor following his arrest on the 7th December, he had made the statement under pressure and he had been “slapped around a few times”.
The same day at Wombourne Police Station Patrick Molloy was interviewed starting at 1420 and ending at 1550. He was cautioned by DI Wordley. He said that he had no doubt that Michael Hickey was holding the gun. When he had said in his written statement Exhibit 54 that James Robinson had the gun he meant that as a general statement and not that James Robinson had had the gun in the living room at Yew Tree Farm. Later he said that it was feasible that James Robinson passed the gun to Michael Hickey. The police pointed out that he was contradicting himself. Patrick Molloy agreed that he had said both things and did not know which was correct. The interview was suspended for five minutes from 1435. When the interview was resumed Patrick Molloy said that they had travelled away from Yew Tree Farm in the same way as they had travelled going to it. It was pointed out to him that in Exhibit 54 he had said that Michael Hickey had driven the van away from the farm. At first Patrick Molloy said he did not think he said that and then he said he must have been confused. In this interview Patrick Molloy said that the estate car in which he and James Robinson had collected Carol Bradbury from hospital was brownish in colour and he had never seen James Robinson in possession of a blue estate car. A little later when he was told that Carol Bradbury said that she had been fetched from hospital in a blue vehicle Patrick Molloy agreed and when reminded that he had just said the vehicle was brown said it was “brown or grey like”. Patrick Molloy then said that he had not been in the Dog and Partridge on the day that Carol Bradbury had come out of hospital. He repeated that the van James Robinson had driven to Yew Tree Farm had had a white top. He had seen that van before the 19th September outside the Dog and Partridge. The interview ended with Patrick Molloy saying that he would be pleading guilty to being at Yew Tree Farm.
Patrick Molloy was seen at 1800 hours the same day by DC Eccleshall, who cautioned him. In that interview he said that on the 19th September he and James Robinson had left the California public house at about 3 pm. This interview took place after the Director of Public Prosecution’s office had given instructions that afternoon that Patrick Molloy should either be charged with murder or treated as though he had been charged with murder.
The same evening at Wombourne Police Station Michael Hickey was interviewed starting at 1940 hours ending at 2015 hours. After caution, he repeated his alibi and named two taxi firms one of which he maintained had driven him from the Dog and Partridge to his mother’s home on the 19th September. When he was told that the witnesses who had been at the Dog and Partridge and had been interviewed by the police would say that he, Michael Hickey had not been at the Dog and Partridge after 3 pm on the 19th, Michael Hickey said that they were liars. He was unable to give a reason why Patrick Molloy should name him as being present at Yew Tree Farm. There was a further half hour interview under caution with Michael Hickey that evening beginning at 2025 hours. Again he was invited to give a reason why Patrick Molloy should say he was at Yew Tree Farm and his reaction was to call Patrick Molloy names and to say that he would have Patrick Molloy “done” for involving him.
The next day, the 22nd December, Michael Hickey was interviewed at 0945. He was reminded he was under caution. During the course of that interview he said:
“I can’t think of any reason why anyone should do it. It wouldn’t have mattered if the boy had seen their faces. At worst they could only get them for screwing and having a gun with them. That’s what we are going to get done for at Romsley but don’t forget I didn’t have the gun …. so all I can be done for is screwing the house.”
He said that Vincent Hickey had asked him to go to Chapel Farm. He then gave a full account of the offence at Chapel Farm. When questioning returned to Yew Tree Farm he denied being involved but said that he couldn’t think where he had been at that time.
At 1135 on that day James Robinson was interviewed at Winson Green Prison reminded of the caution, and gave an account of fetching Carol Bradbury from hospital with Patrick Molloy on the morning of the 19th September, in a stolen Ford Cortina estate which was abandoned in Selly Oak, the remainder of the journey being completed by bus. He said that they had left Carol Bradbury at home while he and Patrick Molloy had gone to the California Public house. He bought Carol Bradbury flowers on his way home from the public house at about 3 pm He then went to bed with Carol Bradbury that afternoon and had sexual intercourse with her. When he got out of bed Star Trek was on the television. The interview lasted until 1240 hours.
At 1315 that day Michael Hickey was interviewed at the Wombourne Police Station. At 1335 he was having his fingerprints taken in the Surgeon’s room in the cell block by DC Massey and also present was a DS Williams. There was a conversation between Michael Hickey and those two police officers during which the police evidence was that Michael Hickey, having just been reminded of the caution, was asked “Was the paper boy smiling when the gun went off?” To which Michael Hickey replied “No he wasn’t”. The sergeant then immediately said “Do you realise what you have just said?” To which Michael Hickey made no reply. That exchange was denied by Michael Hickey when he gave evidence at his trial. In the early afternoon of that day Michael Hickey’s father, Joe Hickey, was permitted to see his son. The police evidence put this meeting at about 1400 hours. Michael Hickey told his father that he had not committed the Carl Bridgewater murder. He also told his father that he had not been assaulted, Joe Hickey apparently having been led to believe that his son had been assaulted by police officers.
That evening at 1945 hours having been cautioned, Michael Hickey repeated his taxi alibi for the 19th September. He was asked about statements Vincent Hickey had made and said “What he does is nothing to do with me, I wasn’t there.” Exhibit 54 was read to Michael Hickey who declined to read it. He said that it was rubbish. Michael Hickey was pressed on the contents of Exhibit 54 and asked why Patrick Molloy should name him as a participant unless it was true. Michael Hickey told the police he was still unable to say where he had been on the 19th September. He made threats of what he would do to Patrick Molloy if he could get hold of him.
At 1045 a.m. on Thursday 28th December at Wombourne Police Station Patrick Molloy was charged with the murder of Carl Bridgewater. Following a caution he replied “I’ll say I am not guilty of it”. He was then taken before the Magistrates who remanded him in custody. At 1130 he was seen by his solicitor at the Wombourne Police Station.
On the 28th December 1978 Vincent Hickey was interviewed by police officers at Bromsgrove Police Station at 1130 in the morning. He was told that Patrick Molloy had been charged with murder. He was cautioned. He said that the police could not get him convicted on his statements even though he had said things that only someone who had been in the house would know because there was nothing else to back it up. He claimed that Patrick Molloy had told him that Patrick Molloy was involved in the murder. He had not mentioned that before, because he wanted to see how the land lay. Vincent Hickey asked if Michael Hickey had made a statement saying that he had heard that Michael Hickey had “Gone weird”.
The same day at Redditch Police Station, to which he had been transferred Michael Hickey was told at 1350 hours that Patrick Molloy had been charged with being concerned with others in the murder of Carl Bridgewater. He was cautioned and told that he had plenty of time to think about what he had been doing on the 19th September. He was still unable to think where he had been on the afternoon of the 19th September. He claimed that he had never discussed with Vincent Hickey where he had been on that afternoon. If Vincent Hickey had told the police that he had discussed the murder with him, Michael Hickey, then Vincent Hickey was lying. Michael Hickey denied the story of confronting James Robinson in Vincent Hickey’s presence in the California public house with the Carl Bridgewater murder.
At 1430 hours Patrick Molloy was taken from Wombourne Police Station to Shrewsbury Prison. In the car he said to DS Harrison and DC Davies that he was frightened of the Hickeys. He knew that his statements conflicted a bit. He said that Vincent Hickey and Michael Hickey had picked up him and James Robinson from the California public house and taken them to the Dog and Partridge where they had got into a light blue Ford Cortina estate. He also pointed to a van which was ahead of the police vehicle as being similar to the van used at Yew Tree Farm.
The next afternoon Patrick Molloy’s solicitor attended on him at Shrewsbury Prison. Mr Wiggall’s record of what Patrick Molloy said on that occasion included these statements: that the statement which was to become Exhibit 54 was not true although he had made it. He had not made it because he was frightened. He made it because he was shown a statement by Vincent Hickey implicating him in something he was not involved in. Vincent Hickey’s statement had said that he was at the farmhouse and was the driver and that Jimmy Robinson and Patrick Molloy were with him. The statement did not mention the shooting. Patrick Molloy had put in his statement that he saw a boy shot in the head lying on the settee and he had heard Robinson say it was an accident. This was not in Vincent Hickey’s statement. His statement was one that was made up; there was nothing in it that was true. Then Patrick Molloy is recorded as saying:
“Nobody has ever mentioned to me any of the things in the statement; it is all out of my head.”
Later in this conference with his solicitor Patrick Molloy said that he had made his statement after being shown Hickey’s statement for the second time. Towards the end of the interview he is recorded as repeating:
“There is nothing in the second statement which is true. It is all made up out of my head.”
He repeated that he had made the statement because of being shown a statement by Hickey which implicated Robinson and himself.
The final interview occurred on the 4th January 1979 at Wombourne Police Station starting at 1115 hours. It was of Patrick Molloy. During it Patrick Molloy identified the three receivers of stolen property used by James Robinson. This final interview followed an appearance by Patrick Molloy before the Magistrates at 0955 and a conference with his junior counsel and solicitor.
Patrick Molloy’s Instructions to his Solicitor and Counsel
It is convenient to set out in this part of the judgment the dates on which Patrick Molloy gave further instructions to those acting for him in relation to his police interviews. On the 27th March 1979 there is the first record of Patrick Molloy saying that the police had told him various things about the murder that helped him to make up the details contained in his statement and admissions. He is recorded as saying:
“The police gave me hints of what to say.”
After service of the committal papers upon his solicitors, his solicitor took instructions from Patrick Molloy on the various witnesses who formed the prosecution case against him. It seems likely that this conference took place on the 5th April 1979. Of DCI Watson’s evidence, Patrick Molloy said of his account of one interview that it was a correct record of what was said and, of another interview, that it was a correct account as far as he could remember. The reference to the bicycle had only been made because the police had mentioned it to him, (this referring to the interview on the afternoon of Monday 11th December 1978). In relation to the interview on the morning of Tuesday 12th December, Patrick Molloy said that the reference to taking his socks off was something that he understood but could not remember saying.
In relation to the evidence of DS Harrison, Patrick Molloy told his solicitor that the account of what was said about the Tamworth burglary and other offences given by that witness was correct.
In relation to the statements of DC Perkins and DC Leeke, Patrick Molloy is recorded as saying:
“I agree that these statements are a correct account of the interviews with these officers. What I said however is not the truth. The details came from what had been said to me by the police. Also I was knocked about by the police. I was hit in the face by an officer, DC Perkins I think; the plate of my false teeth was broken with one blow. I was punched. I was also under continual questioning night and day and even when they left me the door was hammered every half hour. I was given nothing to drink and had to drink water out of the toilet bowl. I was given food that was heavily salted. I was told by the police that if I admitted to burgling the place then they would be satisfied. With regard to stacking the drawers in the bedroom I never used to do this. I was not that tidy.”
With regard to the statements of DCI Wood, DS Wys and DC Scott Patrick Molloy told his solicitor that he thought their statements gave a true account of what was said in the interviews and conversations.
On the 11th April 1979 Patrick Molloy gave his solicitor these instructions:
“I admit on the whole the accuracy of the reported conversations between myself and the police. They have however left parts out. I admit also that I made the statement describing the burglary at Yew Tree Farm. I state however that the account I gave was invented from my own mind with the help of detail being provided by the police. Also during police questioning after my arrest my requests to see a solicitor were denied. I was physically assaulted on two or three occasions. I was kept awake throughout the night and my food was heavily salted and I was left without anything to drink. I was also shown what looked to be a statement made by Vincent Hickey signed in two places.”
On the 30th September 1979 Patrick Molloy wrote to his solicitor and counsel:
“I have thought long and earnestly about what I am going to do and it is very difficult. I have the choice of two evils. To give evidence under oath, or to sit quietly in the dock and say nothing. The best I can do is to take your advice, which I will do.
This is what I want you to do. Put forward my alibi statement. I do not want you to particularly attack the police as I think we would lose what advantage we have. Lay stress on my past record, in other words disclose it to the jury. We must put it across to them that I have never taken part in violent crime, and I would be unlikely to take part in an armed robbery of any sort. My record proves that. Also there are happenings where I would not take part which you can bring out in evidence, such as when I went to Leeds for a few days to avoid taking part in the Tesco robbery. …….”
On the 11th October 1979, during his trial, Patrick Molloy gave his lawyers written and signed instructions which read as follows:
“I Patrick Joseph Molloy acknowledge that I have received the advice of leading and junior counsel that it would be in the best interests of my defence if I were not to give evidence. I have decided to accept that advice and I do.
I further understand that although my alibi defence will be pursued in the cross-examination of prosecution witnesses and if appropriate of defence witnesses it is unlikely that there will be any evidence of my alibi before the jury, and that consequently the main argument addressed on my behalf to the jury by my leading counsel in his closing speech must be that if the jury accept that what I said to the police as has been recorded in interviews and in my statement exhibit 54 is the truth, then if guilty at all I should be found guilty of manslaughter and not of murder because although I have said to the police that I took part in the burglary of Yew Tree Farm I took no part in the killing of Carl Bridgewater and did not know a gun was to be taken on the expedition to Yew Tree Farm or, that, in so far as I have said anything indicating that I did know that a gun was to be taken, the extent of my knowledge was that the gun was to be used to frighten and not to inflict physical injury.”
The Trial
The appellants’ trial opened on the 8th October 1979. A factor in the presentation of the appellants’ cases at that trial was the fact that each had criminal convictions.
Patrick Molloy had had ten court appearances between 1947 and 1975 for burglary and theft. On two occasions in 1950 and 1962 he had received sentences of 5 years imprisonment. He had, prior to his trial for the Yew Tree Farm offences, no conviction for an offence involving violence. James Robinson had had nine court appearance between 1954 and 1978. The first five of these had been in Australia. On each occasion he had been sentenced to hard labour. One of the four appearances in this country resulted in a sentence of immediate imprisonment. None of these convictions were for offences involving violence, but by the start of his trial for murder, James Robinson had pleaded guilty to the armed robberies at Tesco’s and Chapel Farm and, as his counsel conceded, had moved into crime of an extremely serious kind. Vincent Hickey had had seven court appearances between 1970 and 1978. His offences were mainly to do with the taking and driving away of vehicles. For some of these he had been ordered to undergo detention. He had convictions for burglary and theft and one for assault occasioning actual bodily harm. In respect of these offences he was dealt with by way of non-custodial sentences. He had pleaded guilty to the offence of deception at Chapel Farm, Count 3 in this indictment. Michael Hickey had had four court appearances between February 1976 and August 1978, for offences which included burglary and theft. They were all dealt with by way of non-custodial sentences. He, like James Robinson, had pleaded guilty to the armed robberies at Tesco’s and Chapel Farm.
The first issue that had to be decided by the trial judge, Drake J, was whether Vincent Hickey should be tried for the robbery at Chapel Farm at the same time as he was tried on Counts 1 and 2 in the indictment, the murder and the aggravated burglary at Yew Tree Farm, and whether the Crown should be permitted to lead evidence in the cases of James Robinson and Michael Hickey of the Chapel Farm robbery under the similar fact evidence rule, or whether there should be separate trials for those two matters in respect of Vincent Hickey and whether the evidence of the armed robbery at Chapel Farm should be excluded.
It was the prosecution’s submission that the armed robbery at Chapel Farm bore a striking resemblance to that at Yew Tree Farm. Both properties were within a 20 minute to 40 minute drive of Selly Oak. Both were situated some distance from any other property. Both were occupied by elderly people who had lived at those premises for some considerable time. Both properties were run down but likely to contain portable items of value. In both cases the Crown had evidence that a loaded shot-gun was taken by the robbers. The prosecution would also have relied on Chapel Farm to demonstrate that in that case Vincent and Michael Hickey had been at the Dog and Partridge at lunch time, leaving there at about 2.30 pm; that they had contacted James Robinson in the street as he was leaving the California public house to return to Carol Bradbury’s house; that he had thereupon agreed to go with them and had collected his shot-gun, masks and gloves; that the robbery had taken place at about 4 pm and that approximately three-quarters of an hour later Vincent Hickey was back at Linda Galvin’s flat, drinking tea and concerned about Christmas decorations. Shortly after that offence Vincent Hickey had arranged a false alibi with a man called John Smith.
The judge’s ruling was that there was sufficient similarity between the events at Yew Tree Farm and those at Chapel Farm to bring the Chapel Farm offence within the similar fact rule; the evidence relating to Chapel Farm would thus be admissible in the trial of the Yew Tree Farm offences. The judge went on to exercise his discretion to exclude this evidence on the basis that its prejudicial effect outweighed its probative value. The judge said:
“….. I have come to the firm conclusion that the prejudicial effect of the evidence in the circumstances of this particular case would be so great as to outweigh and be out of proportion to its probative value. I do not think that the interests of justice demands that such evidence should be admitted. I think, on the contrary, it means that it should be excluded.”
The Judge continued by making it clear that each of the accused was at liberty at any time during the trial himself or through Counsel to make reference to what had happened at Chapel Farm, should they decide that it was in the interests of that Defendant to do so, and that was so, even though such references might have a prejudicial effect on one of the other Defendants. In the event no Defendant did make reference during the trial in the presence of the jury to the armed robbery at Chapel Farm. This ruling created a difficulty for the defence of Vincent Hickey, which, as we shall see, was a matter raised in the absence of the jury during the giving of evidence by Vincent Hickey.
Evidence against each appellant linking him with the events at
Yew Tree Farm
Patrick Molloy
The principal evidence linking Patrick Molloy with the events at Yew Tree Farm was his admissions in the various interviews but in particular in the interview and written statement of the afternoon of Sunday 10th December 1978. It was the Crown’s case at trial that the gun used may well have been the property of James Robinson, Exhibit 25, although it was accepted by the Crown that the shot which killed Carl Bridgewater was of a different calibre from the shot in the cartridge found at Carol Bradbury’s flat and those found with Exhibit 25. Consequently the evidence of Susan Bennett and her husband Alan Bennett, who lived next door but one to the flat occupied by Carol Bradbury, James Robinson and Patrick Molloy, that shortly after the 19th September Patrick Molloy had brought Exhibit 25 together with an air pistol and some shotgun cartridges to their flat so they could be hidden there, became evidence against Patrick Molloy, if the jury concluded that Exhibit 25 had been used at Yew Tree Farm.
There was the evidence of Helen Johnston of the conversation she said she had heard in the Dog and Partridge between Patrick Molloy and James Robinson in which she overheard Patrick Molloy saying to James Robinson “Whatever you do, whatever you say, say the gun went off accidentally”, and that she knew they were talking about “the paper boy”. Prison Officer Edwards, a senior prison officer at Shrewsbury Prison, gave evidence of speaking to Patrick Molloy and saying that Patrick Molloy did not seem to be the sort of man who would do this thing, referring to the murder. The witnesses evidence was that Patrick Molloy replied “I didn’t. I allowed myself to become involved. I am not making any excuses. I knew he had a gun”. When asked which one of them had used it, Patrick Molloy had replied “The one who was about 46″. Cross-examination on behalf of Patrick Molloy did not dispute that he had said he had allowed himself to become involved and was not making any excuses. What was challenged in cross-examination was that during the conversation Patrick Molloy had given an answer to a question which implied that it was the man who was about 46 who had used the gun. The suggestion being that what Patrick Molloy had said was that the gun belonged to the man who was about 46. There was evidence from two other prison officers concerning Patrick Molloy’s involvement. First, Prison Officer Fuller another officer at Shrewsbury Prison spoke to Patrick Molloy about the offence with which he was charged, saying “You’ve done it now. You are in for a bad thing now”. To which Patrick Molloy had replied “I didn’t kill him, boss. It was that bastard, the 19 year old”. That answer was challenged in cross-examination. The prison officer made no note of it and it was first written down in the form of a statement on the 26th March 1979, 11 weeks after Patrick Molloy was transferred from Shrewsbury Prison to Leicester Prison on the 3rd January.
Finally Prison Officer Shields, an officer who was stationed at Leicester prison, gave evidence that Patrick Molloy said that James Robinson had had the gun. James Robinson had done it. He, Molloy, had not known about the gun.
James Robinson
James Robinson was the only defendant against whom there was any identification evidence. On the 23rd February 1979, some 22 weeks after the Yew Tree Farm offences, at an identification parade conducted by Inspector Moss, three witnesses purported to identify James Robinson. The first was Terence Madeley who thought that James Robinson could have been the man in the front passenger seat in a dark green Ford Cortina estate which he had seen waiting to pull out of the Yew Tree Farm drive between 4.25 and 4.45 in the afternoon. When Mr Madeley gave evidence, it became clear that he could not be certain whether he had seen the dark green Ford Cortina estate on Monday 18th or Tuesday 19th of September. The judge, in his summing-up, warned the jury against relying upon Mr Madeley’s evidence as evidence against James Robinson.
The second identification witness was Mario Sabetta who said that he thought James Robinson was familiar and that he was one of the two men whom this witness had seen, the one without the gun. The third identification witness was Miss Wendy Stagg. Her evidence was that at the identification parade she had immediately recognised the third man from the right as the man she had seen outside the blue estate car talking to the men inside the blue estate car, at about 4.40 pm in Lawnswood Road.
Next there was the gun, Exhibit 25 and the cartridges. That was complemented by the evidence of Helen Johnston as to the part of the conversation she had overheard between Patrick Molloy and James Robinson in the Dog and Partridge. Another witness who gave evidence of a conversation with James Robinson in a public house, the California public house on this occasion, was James Dundas Ure. Ure’s evidence was that he had been with his common law wife Patricia Copus in the California public house shortly after the Carl Bridgewater murder and had seen James Robinson and Patrick Molloy. He told James Robinson that he had been told by a Jimmy Smith that James Robinson had been arrested for the murder. He had asked James Robinson whether he was responsible, James Robinson had responded by moving his hands and saying “It was an accident”. He had said to James Robinson that he would get 30 years for that and James Robinson had repeated that it was an accident. Patricia Copus gave evidence to the effect that she had heard her common-law husband say to James Robinson that James Robinson would get “30 years for that” and James Robinson had told Ure just to forget what he had said. She had not heard any reference to Carl Bridgewater. Ure’s evidence had continued with another occasion when he and James Robinson were in a car when James Robinson had told him to forget it. Ure presumed that James Robinson was referring to the murder. Later he had seen James Robinson in prison. He had, on one occasion when speaking to James Robinson in prison, asked why, if it was an accident James Robinson did not tell the authorities it was an accident, to which James Robinson had replied “It’s too late for that now. No one would believe it now.”
Two other witnesses gave evidence of conversations with James Robinson in prison in which James Robinson was said to have made admissions. A man called Ritter said he had had a conversation with James Robinson about the Carl Bridgewater murder and had asked James Robinson about the case the police had against him. James Robinson had replied that it was “All a load of verbals and they could not convict him on what they had”. Ritter’s evidence was that Michael Hickey was there and James Robinson and Michael Hickey were laughing as if it was a big joke. On another occasion when he was exercising with James Robinson and Michael Hickey was walking behind him James Robinson made a reference to what would happen if the police broke Carol Bradbury or she were to find out that he, Robinson, had been going with other women so that she turned on him. Ritter claimed to have kept notes because he did not think of the murder of the newspaper boy as a joke, as apparently James Robinson and Michael Hickey did. He heard James Robinson say that the gun would not fit the bullets used for the murder. Reference had been made to the boy being killed in a room. James Robinson had said “A dead kid can’t speak particularly when he’s got his head blown off”. James Robinson and Michael Hickey thought that was funny. He had offered to help James Robinson because he, Ritter, was then about to be released by making contact with Carol Bradbury on James Robinson’s behalf. James Robinson had told him that he had killed Carl Bridgewater but it was an accident.
Another serving prisoner to give evidence as part of the case against James Robinson was a man called Bryant. He told the jury that he had got to know Vincent Hickey, Michael Hickey and James Robinson but had spoken mostly to James Robinson. James Robinson had told him that the police were saying that more property had been stolen than had actually been taken and that he had taken the property to a receiver of stolen goods who had refused to take it because he recognised where it came from. James Robinson had talked of a small carriage clock. On another occasion, at which James Robinson had been present, Vincent Hickey was discussing a witness who was said to have seen two men, one with a shotgun. He said that Vincent Hickey said that she wouldn’t have been able to see the gun from behind if it had been carried as the witness said it was being carried. Vincent Hickey gave a demonstration to establish what he meant. There had also been a discussion about who had said what after the gun had gone off. It had been said that James Robinson had said it was an accident as Patrick Molloy came down the stairs. They had also discussed their alibis in this witness’ presence.
There was a further witness a Timothy Roberts, a barman in the California public house who told the jury that about three weeks before his birthday, which was on the 11th October, James Robinson had come into the public house with something under his blue anorak. There was a bulge about 18 inches long stretching from the shoulder to the hip. He had had the opportunity to look inside the anorak and saw that one end of the object was a piece of shaped wood. The prosecution invited the jury to infer that that was evidence of James Robinson being armed with a sawn-off shotgun at about the time of the Yew Tree Farm offences.
James Robinson was interviewed extensively by the police. During the course of those interviews he gave a false alibi, namely that he and Patrick Molloy were out committing offences of theft at the time of the Yew Tree Farm murder. The prosecution also suggested that, although there were no express admissions made by James Robinson during those interviews, some of his answers and his demeanour at the time of giving the answers were the behaviour of a man who was on the point of confessing.
Vincent Hickey
The main evidence against Vincent Hickey were the various admissions he made in interview. Those admissions were supported by the false account he had given to the police of his movements on the 19th September 1978 when he was questioned on the 14th and 15th October 1978. He had also lied about his association with James Robinson in September 1978.
Next, Vincent Hickey had claimed that he had no knowledge of the area in which Yew Tree Farm was, that is to say the area of Wordsley and Kingswinford. The prosecution were able to call his cousin Reginald Hickey, who gave evidence that he had worked with Vincent and Michael Hickey in this area, knocking on doors to seek building work.
Two witnesses gave evidence that Vincent Hickey had a blue Ford Cortina estate car in the period prior to his leaving his wife at the end of August 1978 namely Pauline Colverson and Eileen Birch.
The evidence of the prisoner Bryant of the demonstration given by Vincent Hickey of the way in which the gun was said to have been carried and of discussions by the Hickeys of their alibis formed part of the prosecution’s case against Vincent Hickey. Finally there was the evidence of Prison Officer Kelly of an occasion when Vincent and Michael Hickey were waiting for their visitors and Vincent Hickey had spoken to Michael Hickey about the Bristol Road Garage and having a car in the name of James Galvin, and that a £200 deposit had been put on a light blue not a silver grey car. There was also evidence from this witness that on another occasion he had heard Vincent Hickey say during a visit by Vincent Hickey’s mother and his wife and another woman that Vincent Hickey was having bad dreams and kept seeing “the kid’s face”.
Michael Hickey
The prosecution’s case against Michael Hickey began with the evidence which disproved his initial account of his whereabouts on the afternoon of the 19th September 1978, namely that he had been at the Dog and Partridge drinking after closing time at 3 pm as part of the celebration of David Waller’s wife giving birth to a son. There then came the evidence of two prisoners at Winson Green Prison. The first, Brian Sinton, said that he had taken a shower at the same time as Michael Hickey, who had volunteered the information that he was in custody for the Carl Bridgewater murder. Sinton said that he had asked Michael Hickey why it had been necessary to shoot the boy, and Michael Hickey had replied that, between the four walls of the shower room, he had had to. The boy was howling and crying. The boy had been crying his eyes out and that was why he, Michael Hickey, had had to pull the trigger. Michael Hickey had been bragging. He also told Sinton, according to Sinton, that “a mate had grassed” and that he, Michael Hickey, was going to get “the mate to say that his statement had been made under duress”.
The second prisoner at Winson Green Prison to give evidence against Michael Hickey was Ritter. That was the evidence about James Robinson and Michael Hickey laughing about the Carl Bridgewater murder as if it were a big joke.
This evidence derived some support from that of Prison Officer Kelly concerning the conversation he had over heard between Vincent and Michael Hickey whilst they were awaiting visitors, which, it was suggested by the prosecution, was the concoction of an alibi. This prison officer also gave evidence of a visit to Michael Hickey by his mother, in which Michael Hickey had said that “The bastards are taking me down with them. We have got to get this Bristol Road Garage right”.
As in the case of Vincent Hickey, the prosecution against Michael Hickey relied on the evidence of the cousin, Reginald Hickey, to contradict Michael Hickey’s assertion that he knew nothing of the part of Staffordshire where Yew Tree Farm was situated. A man called Michael Lee, a regular at the Dog and Partridge who knew all four defendants, told the jury that during a car journey with Michael Hickey after the Yew Tree Farm offences he had asked where Joe Hickey and Vincent Hickey were and Michael Hickey had told him “They were getting rid of some stuff from the farmhouse …. you know …. that kid”. Michael Hickey had then added “Oh, well, it is nothing to do with us, just someone we know”.
In addition, Michael Hickey was not arrested by the police until the 20th December 1978. The reason for that was that when Vincent Hickey had been arrested on the 4th December for the offences committed at Chapel Farm, Michael Hickey had taken himself off to Wisbech, and the police had been unable to trace him. His initial account of his movements on the afternoon of the 19th September when interviewed by the police was that he had remained in the Dog and Partridge until 4.00 pm. Then he had taken a taxi to his mother’s house and from there he had gone to his girlfriend’s house. This story had lead the police to a taxi driver, Dennis Eaton, who gave evidence of driving Michael Hickey in a taxi shortly after Vincent Hickey had been arrested. That witness gave evidence that in February 1979 when he was visiting the Remand Centre where Michael Hickey was being held, he saw Michael Hickey who asked him to say that he remembered that Michael Hickey was in his taxi, which the witness understood to mean that he wanted an alibi for the 19th September 1978.
The other piece of evidence against Michael Hickey was an alleged remark he made to police officers whilst his fingerprints were being taken on the 22nd December 1978 in the Surgeon’s room of the Cell Block at Wombourne Police Station. On that occasion DS Williams and DC Massey gave evidence that DS Williams told Michael Hickey that he just left Michael Hickey’s father who had been crying; that there was then a caution and Michael Hickey was asked “Was the paper boy smiling when the gun went off?” to which he replied “No, he wasn’t”. It was said that the officer then said “Do you realise what you have just said?” to which Michael Hickey made no reply.
The defences of the four appellants at their trial
1. Patrick Molloy:
This account of Patrick Molloy’s defence is based on his solicitor’s notes of his counsel’s closing address to the jury.
Patrick Molloy did not give evidence. Counsel began by telling the jury they had heard much about Patrick Molloy and had been able to observe his demeanour throughout the case. There had been very few challenges made to the evidence against him by his counsel.
The prosecution had not suggested that Patrick Molloy had fired the shot which killed Carl Bridgewater. There was no evidence that Patrick Molloy was in the room when the shot was fired. Counsel reminded the jury of Patrick Molloy’s alibi notice and of James Robinson’s evidence that Patrick Molloy was at the house in Weoley Castle on the afternoon of the 19th September. It was for the prosecution to prove that Patrick Molloy was at Yew Tree Farm that afternoon. If the jury accepted that what Patrick Molloy had said to the police was correct they would act on that assumption that Patrick Molloy was there. The jury had the two statements that he had made under caution, Exhibit 53 and Exhibit 54. Basing themselves on Patrick Molloy’s statements, the prosecution said he was there. Even if the jury found that Patrick Molloy was at Yew Tree Farm, that did not convict him of murder. Then counsel said this:
“I shall deal with him on the basis that he was not in the room when that boy was shot and that therefore he had no opportunity whatsoever to stop whoever it was who pulled the trigger. This is a very important part of this case, because if he was not there, he could not have prevented it.”
Counsel then reminded the jury of what a witness, Bryant, had said that Robinson had said namely:
“If Molloy had been downstairs this may never have happened.”
Counsel reminded the jury of those passages in Patrick Molloy’s statements and in his interviews to the police where Patrick Molloy told them that he was terrified of the other defendants and had been threatened with personal injury. At the same time counsel reminded the jury of answers given by Michael Hickey and James Robinson in their interviews by the police where they had made threats against Patrick Molloy on being told that Patrick Molloy was saying that they were present at Yew Tree Farm. At the end of this passage of his address to the jury, counsel for Patrick Molloy said:
“If he, Molloy, has only told half truths, as DCI Watson was accusing him, is it surprising with all these threats hanging over him?”
Counsel for Patrick Molloy then turned to those parts of the evidence which tended to support the admissions by Patrick Molloy to the police being true admissions. First, his account of how James Robinson had acquired the sawn-off shotgun Exhibit 25 was confirmed by other evidence including that of Robinson himself. Next there was the evidence of the stacking of drawers in one of the bedrooms. Patrick Molloy had been able to describe accurately how the boy was positioned on the sofa after he had been shot.
Counsel then went on to deal with the evidence in relation to the question whether Patrick Molloy knew that a shotgun was being taken to Yew Tree Farm that afternoon. That involved a consideration of the statements Patrick Molloy had made to the police and the statements he was alleged to have made to various prison officers. At the conclusion of this part of his address counsel is recorded as saying:
“What I say to you in respect of this matter, members of the jury, is that there is no evidence before you in this case, that Molloy ever knew that there was a gun at that farm that afternoon in September 1978.”
Before concluding his address to the jury, counsel for Patrick Molloy commented on the evidence of Helen Johnston of a conversation she said she had heard in the Dog and Partridge between Patrick Molloy and James Robinson, the evidence of the Bennetts, in respect of the hiding of Robinson’s shotgun and Molloy’s involvement in that, and finally of Timothy Roberts in respect of seeing a bulge in Robinson’s anorak when Robinson and Molloy were at the California some three weeks prior to the 11th October 1978. Counsel reminded the jury of the evidence both in Molloy’s answers to the police and other evidence such as that of the witness Mario Sabetta which suggested that Robinson’s gun may not have been the gun which was at Yew Tree Farm. Counsel concluded by pointing out to the jury the difference between murder, manslaughter and aggravated burglary, telling the jury that it was not sufficient for the prosecution to prove that Patrick Molloy was at Yew Tree Farm in order to obtain a conviction against him for murder, because the offence of which he was guilty depended upon his participation. Counsel said this:
“If you find that he was there, then he is there as a burglar and if he did not know of a gun or any other weapon he is not there as an aggravated burglar. You then may ask yourself the question whether he is guilty of manslaughter or not.”
The prosecution could not have it both ways. Either they asked the jury to accept the truth of what Patrick Molloy had said in interview and in his statement, in which case he did not know of the taking of the gun to Yew Tree Farm or there was doubt about the truth of his statements and therefore doubt about his presence at the farm that afternoon.
2. James Robinson
James Robinson’s defence was simply that he was not at Yew Tree Farm and had never been to Yew Tree Farm either that afternoon or any other afternoon. Alibi notices were served on behalf of James Robinson to the effect that on the morning of the 19th September he and Patrick Molloy had fetched Carol Bradbury from hospital, taking her part of the way to her home, where they were living in a stolen Ford Cortina estate car, which was abandoned short of her home so that the journey was completed by bus. He and Patrick Molloy had then gone to the California public house returning to Carol Bradbury’s flat that afternoon sometime between 2.30 and 3.00 o’clock with James Robinson buying flowers for her on the way. He had then remained at the flat, going to bed with Carol Bradbury that afternoon and having sexual intercourse with her. When he had got out of bed the programme Star Trek was on the television, that is to say it was after 6 pm. Patrick Molloy was still in the flat when he, James Robinson, got up, and as far as he, James Robinson, knew Patrick Molloy had not left the flat that afternoon.
James Robinson gave evidence of his movements that afternoon, but did not call any witness to support his account.
The defences advanced on behalf of these two appellants can be dealt with together because it was said in their alibi notices and in their evidence that they had been together during the relevant time.
Their account was that they were in the Dog and Partridge in the early afternoon until sometime shortly after 3.00 o’clock. Neither Patrick Molloy nor James Robinson were there. They had left that public house and had gone to the flat of Linda Galvin, stopping once or twice on the way at various garages in the Bristol Road area of Birmingham because Michael Hickey was interested in purchasing a car and Linda Galvin wanted to change her car. They simply looked at cars at these garages but made no inquiry and reached Linda Galvin’s flat towards 4 o’clock. A new suite of furniture had just been delivered. Alan Murray, who also lived at the flat, was in bed. Linda Galvin’s daughter, Stephanie, had come home from school at about 10 past 4. She had gone out immediately to the launderette. When she came back she said she had seen an ashtray for sale in a nearby shop that would match the new suite of furniture. Vincent Hickey had given her money with which to buy the ashtray. She had gone and purchased the ashtray. Then after about half an hour, he and Michael Hickey had gone to a garage in Bristol Road with Linda Galvin’s car. They had arrived there at about 4.40 pm and had spoken to the owner who was Greek. They had stayed there for about an hour, after which Vincent Hickey had filled out a form for finance in the name of James Galvin and left a deposit of £50. Later a man called Turner had gone to the garage to reclaim the deposit and had recovered £40 for him.
Both Vincent Hickey and Michael Hickey gave evidence in support of this account of their movements on that Tuesday afternoon. In giving evidence they spoke of a second elderly man being present at the garage who was putting away the cars displayed on the forecourt in a compound.
With respect to Vincent Hickey’s statements to the police indicating that he was present at Yew Tree Farm, his explanation for making such statements was that he was trying to achieve immunity from prosecution in respect of the offence of deception at Chapel Farm which he had committed with Linda Galvin.
With regard to Michael Hickey it was denied that he had made the answer that the police claimed he had made whilst having his fingerprints taken. Reliance was placed upon his persistent denials of being involved in the Yew Tree Farm offences despite the rigorous questioning by police officers. In the record of his counsel’s address to the jury, the questioning of Michael Hickey was described as:
“Incessant interrogation.”
And his counsel is recorded as saying:
“There is no complaint from the defence about that, it was a very serious matter, but remember at that stage he was only just 17 and he denied it throughout.”
Certain witnesses such as David Waller, Ronald Brooke and David Bruce gave evidence confirming the presence of Vincent Hickey and Michael Hickey at the Dog and Partridge at or shortly before 3.00 pm that afternoon. Counsel for Michael Hickey submitted that that evidence alone precluded their presence at Yew Tree Farm at 3.25, the earliest sighting of potential intruders.
Some General Observations
Before considering the four appeals and the safety of the convictions of the four appellants on Counts 1 and 2 in the indictment, it is desirable that we make some general observations. Inevitably suspicion will remain that these men, or some of them, were the perpetrators of these offences; the admissions made by two of them contain details which, if not fed to them by the Police, were details that only persons involved in the offences, or who were confidants of such persons, could have known; the reasons advanced by both for making these admissions which they later claimed were false are reasons which many people would find difficult to understand and accept; the similarities between the offences at Chapel Farm and Yew Tree Farm recognised by Patrick Molloy himself as creating suspicion that both had been committed by the same people; the inability of some appellants to remember where they were at the vital time, the initial false alibis advanced; the later emergence of the alibis relied on at trial and the absence from the witness box of those witnesses who might have been expected to support those alibis. All these factors will remain matters of controversy and concern. In making these observations we are not expressing any view of our own. We make them as a necessary introduction to a statement of this Court’s function in these appeals.
This Court is not concerned with the guilt or innocence of the appellants; but only with the safety of their convictions. This may, at first sight, appear an unsatisfactory state of affairs, until it is remembered that the integrity of the criminal process is the most important consideration for courts which have to hear appeals against conviction. Both the innocent and the guilty are entitled to fair trials. If the trial process is not fair; if it is distorted by deceit or by material breaches of the rules of evidence or procedure, then the liberties of all are threatened.
This Court is a court of review. The Court reviews the trial process to equip itself to answer the question “Do we think that the conviction appealed is safe or do we think it unsafe?”. The Court is not a court of trial or of re-trial. Persons accused of serious crimes are tried by juries in the Crown Court. Some of the appellants Counsel have come close to asking this Court to pronounce on the guilt or innocence of an appellant or the truthfulness of an appellant’s alibi. In his Grounds of Appeal, the truth or falsity of Patrick Molloy’s confessions was a matter raised. However, Counsel accepting this Court’s view of its function did not seek to argue that matter or to persuade us to pronounce upon it. Without hearing evidence, these are not decisions which we could make.
The final, general observation that we wish to make concerns the question of non-disclosure. We have heard submissions and had our attention drawn to many decided cases and other sources on the question of what was in 1979, and what is now the duty and practice of the Prosecution when it comes to disclosure of material to those acting for defendants in criminal trials. In particular we are indebted to Counsel for the Respondents, Mr Roberts and Mr Coker for the document dated the 6th April 1997 which they prepared being their submissions on behalf of the Crown concerning the history of disclosure obligations. We are satisfied that the practice of disclosure to the Defence followed by various prosecuting authorities in 1979 varied in different parts of the country; that it was not then the practice for the Prosecution to disclose the working papers of the police force who had investigated the offences to be tried; that there was, nevertheless, an obligation on the Prosecution to make the Defence aware of any material which might prove helpful to the Defence. We take the view that it is not necessary for the proper resolution of these appeals that we make findings on what were the precise principles and practices of disclosure in 1979. It is sufficient for us to look at the material that was not disclosed and to ask first whether that material was relevant to an issue which the jury had to decide and second whether that material would have significantly assisted the Defence case on that issue.
The unhappy conclusion that we have reached is that the criminal justice process did not operate fairly in this case as it should have done. One submission made to us was that there was a general conspiracy including police officers to pervert the course of justice. We do not accept that the material placed before us substantiates that submission. Our findings and criticisms are confined to those matters where the evidence and material we have heard and seen indicate that things went wrong. Some aspects of the investigative process we shall refer to the appropriate authority. In doing that we are not condemning anyone unheard; we are merely indicating that these are matters of concern which should in our view be examined by the appropriate authority to see whether further action is necessary and if so what that action should be.
We shall consequently allow these appeals and quash the convictions on Counts 1 and 2 in the indictment in respect of all four appellants. There can be no question of any re-trial in this case. Consequently the presumption of innocence in respect of the four appellants will be re-established.
We turn now to the particular Grounds of Appeal.
FINGERPRINTSPRIVATE
We start with the ground of appeal which is based on non-disclosure of fingerprints because it is common to all four appeals and is the principal reason why the Home Secretary referred the case to this court in July 1996.
Two identifiable fingerprints were found on the newspaper boy’s bicycle on the diagonal tube from the handlebars to the chain wheel. In the log kept of fingerprints found at Yew Tree Farm, they were listed as marks D and F under the heading “Bicycle”. The fact that unidentified but identifiable fingerprints had been found at Yew Tree Farm was known. It had been reported in the Press and indeed it is clear that James Robinson pointed that out to those representing him at his trial. It would be normal practice for Defence Counsel to enquire of Prosecution Counsel what these fingerprints were and where they were located.
The only cross-examination directed to the matter of fingerprints was general. We refer to the cross-examination of Detective Sergeant Potts, the Scene-of-Crime officer, by counsel for Michael Hickey at Day 4 of the trial page 27 B – C.
“Q. Sergeant Potts, no doubt this Farm House was very carefully examined?
A. It was, Sir.
Q. Carefully examined for fingerprints?
A. That’s correct, Sir.
Q. Carefully examined for footprints.
A. Correct, Sir.
Q. Carefully examined for example for clothing fibres?
A. Correct, Sir.
Q. And the articles that you mentioned also carefully examined for fingerprints?
A. That’s correct, Sir.
Q. And everything meticulously examined, I expect, for any clue that might help identify the intruders?
A. That’s correct, Sir.”
We accept that the probability is, surprisingly, that Defence lawyers did not know of prints D and F and their location on the frame of the bicycle. We further accept that the probability is that any failure to disclose these prints and their location was an oversight. As Mr O’Connor QC, who put forward this ground of appeal, accepted, it is the fact of non-disclosure rather than the reason for it that is of concern to this Court. The probable explanation for the oversight is that the Scene-of-Crime officer, DS Potts, kept separate logs for fingerprints and for other exhibits, and that the expert evidence obtained by the Police at that time indicated that these fingerprints were unlikely to have been those of an adult male and “were most likely to have come from a young person who had yet to achieve full growth”. This was the opinion of DCI Martin, the officer in charge of the Fingerprint Bureau at the Midland Criminal Record Office, given on the 27th March 1979, and based on two factors, the first that the impressions were narrow and second that they showed fine ridge structure. The expert evidence also indicated that certain of the fingerprints found were insufficient for identification purposes, and the entry in the log made by Detective Sergeant Potts is such that it was and is possible to misread the list of this category of fingerprint as including the two marks “D” and “F” on the bicycle frame.
The issue on this ground is whether this non-disclosure was material. The practice of Carl Bridgewater was to leave his bicycle by the little gate that separated the end of the drive from the small garden immediately surrounding the rear door of the house. That point was close to where the bicycle was found. The damage to the spokes of the bicycle’s wheel was consistent with one of the intruders having stepped on the bicycle which was lying on the ground whilst leaving Yew Tree Farm and the place where the bicycle was found was consistent with an intruder having picked up the bicycle and put it over the wall which separated the yard with its out-buildings from the drive.
Had the only expert evidence available been to the effect that these prints were unlikely to have been those of an adult male, those fingerprints would not have been material in that the jury would almost certainly have concluded that they had been made by someone of Carl Bridgewater’s age, such as another person at his school or another newspaper boy. However, it is now clear that other experts take the view these prints may be partial prints made by an adult. We have had placed before us reports of experts in fingerprints which express differing views as to whether these prints show fine ridge characteristics and whether the fingerprints show prints of small fingers as opposed to being merely partial prints. The Respondents submit that despite this body of expert opinion, these fingerprints are not material because the totality of the evidence demonstrates that the intruders were wearing gloves or some other protection on their hands and that “it is inconceivable that, after Carl had been killed, one of the intruders would obligingly remove his gloves before
handling the bicycle which he must have known would be found and examined for fingerprints”. Further the respondents rely upon searches of fingerprint data bases by a computerised method known as AFR for prints to match the fingerprints on the bicycle frame. Those searches have all had negative results. The technicalities of the various data bases and the methods of searching them by computer were explained to us in some detail. There is no need to burden this judgment with these details. The respondents submit that:
“it is highly improbable that anyone involved in the Yew Tree Farm raid was a person with no criminal record before or since, whose fingerprints are therefore not held by any Police Force. The negative result of the AFR check is not, of course, a conclusive point but it does tend to support the inference that marks D and F were not made by one of the intruders”.
There is substance in these arguments, but they ignore the possible Defence line that the intruder left the farm house removing his gloves or other hand protection and stepped on the bicycle accidentally and then without putting his gloves back on picked up the bicycle and put it into the pigsty. We know that some elimination of the fingerprints of those at Carl Bridgewater’s school was done, although we cannot assess precisely how comprehensive that exercise was. Nevertheless the instruction reads:
“Elimination prints of all police officers visiting the scene, Bridgewater family, school friends and other children at school, newspaper boys, children from Ascot Boy Scouts and Martin Flavel (boy in reconstruction) have been obtained”.
The conclusion we have reached is that this information should have been given to the Defence, and would have provided a basis for the Defence to mount an argument which might have found favour with the jury, namely that here was some evidence of an intruder who was not one of the four Defendants.
We now turn to the appeal of Patrick Molloy.
The Appeal of Patrick Molloy
The obtaining of Patrick Molloy’s confessions
The submission that is made is that these confessions were inadmissible because they were obtained by oppression. The oppression consisted of oppressive questioning of Patrick Molloy by the police and the resort by the police to a trick, namely the production of a document which purported to be a written statement by Vincent Hickey implicating Patrick Molloy and James Robinson in the offences committed at Yew Tree Farm.
The proof of this oppression is derived, argued Mr Mansfield, from several sources. First the ESDA examination of Exhibit 54 itself in the early part of this year by experts in the examination of documents and the comparison of handwriting. What they found is not controversial as between the experts called by the Crown and the experts called on behalf of Patrick Molloy. It can be shortly stated. Page 1 of Exhibit 54 had on it impressions below the exhibit label which was the reason why these impressions endured for so long. These impressions had been made before page 1 of Exhibit 54 had been written. They were from a caution in another statement purporting to have been made by and signed by Vincent Hickey. That statement had almost certainly been written on witness statement paper used by the Staffordshire police force in 1978. Such paper would have been at Wombourne Police Station but not at Redditch Police Station where Vincent Hickey was being held and questioned.
The signature “Vincent Hickey” was quite different from signatures by Vincent Hickey. Samples of the handwriting of 12 police officers were obtained and examined by Dr Hardcastle and Mr Radley, two of the expert witnesses called before us. These 12 officers were all the officers who might have had contact with Patrick Molloy or with Vincent Hickey. They included DC Perkins, DC Leeke and DS Robbins. The impressions forming part of the caution contained details which were similar to DC Leeke’s known writing. There were no significant differences between the details of these impressions and the known handwriting of that officer. There were significant differences between those details and the handwriting samples from the other 11 police officers. Dr Hardcastle sounded this note of caution, that because not all the fine detail can been seen from an ESDA trace it is not practical to make a fully effective comparison.
The signature “Vincent Hickey” provided a more restricted comparison because it was simpler and contained fewer characters than the impressions from the caution. The handwriting specimen from DC Perkins was closest to the writing which made the impressions of the purported “Vincent Hickey” signature. Although there were some features which were not well matched, such as the capital “V” in the signature and the capital “V” in the sample, Dr Hardcastle could accept that DC Perkins could have written the purported signature. Of this signature, Mr Radley said in giving evidence:
“There is a broad correlation of most detail with the writing of DC Perkins, although there are some points of difference. Of the samples I have examined DC Perkins’ writing matches most closely the writing of “Vincent Hickey” and he is the most likely author of the “Vincent Hickey” entry.”
This evidence leads us to two conclusions. First, it supports Patrick Molloy’s statement to his solicitor that immediately before he confessed and the reason for his confession was the showing to him of a statement apparently made by Vincent Hickey, stating that he and James Robinson were present at Yew Tree Farm. Secondly, it is evidence that police officers who were questioning Patrick Molloy were prepared to employ deceit to obtain a confession from him.
The use of such a trick is, in our judgment, a clear case of oppression of a type to render the confession thus obtained involuntary and inadmissible. This part of the evidence and the submission made on behalf of Patrick Molloy were not put in issue by counsel for the respondents. Consequently, we do not propose to review the case law to which we have been referred by Mr Mansfield on this aspect of the appeal. The test is clear: is it established that the confession was voluntary, that is to say, it was not obtained by oppression? The answer to that question is, as the Crown accepts it must be, “No”.
Dr Hardcastle when cross-examined by Mr Mansfield agreed that the interview, which was said to have started at 15.40 on Sunday, 10th December 1978, could not have happened in the way in which the police witnesses gave evidence that it did happen. There were two reasons why Dr Hardcastle in common with other expert witnesses reached that conclusion. First, there was the evidence of Mr Butterworth, a Reader in Psychology at University College London. Mr Butterworth examined the contents of the oral confessions said to have been made by Patrick Molloy to DC Perkins and DC Leeke between 15.40 and 16.00 on that Sunday afternoon and those of the written confession, Exhibit 54, said to have been dictated by Patrick Molloy and written down by DC Perkins between 16.00 and 16.20 that day. There were 68 relevant clauses in Exhibit 54. Of these, 23 were identical with clauses to be found in the record of the interview, 12 were similar and 33 were different. “Identical” means that the clauses corresponded exactly word for word. “Similar” means that the clause would have corresponded exactly but for either one or two words being different.
The record of the interview used at the trial was that in DC Perkins’s notebook which was compiled, according to DC Perkins’s evidence, by DC Perkins, with DC Leeke, from notes made by DS Robbins. DS Robbins was ill at the time of the trial and did not give evidence. Nor were his notes of this interview seen as far as can be gathered from the transcripts, although they were asked for during the course of the trial. What is certain is that they were neither exhibited at the committal stage nor were they exhibited at the trial. In his witness statement dated the 28th December 1978, DS Robbins did not, when he came to the interview at 15.40 record, as he had for other interviews, that he was positioned in the cell corridor outside the cell where Patrick Molloy was being interviewed for the purpose of recording contemporaneously the interview of Patrick Molloy by DC Perkins. On the 23 February 1992 when questioned about note taking by Merseyside Police Officers investigating complaints into the way that the interviews of Patrick Molloy had been conducted, DS Robbins claimed that he had taken contemporaneous notes of this interview; that it was rubbish that at that interview Patrick Molloy was shown a statement purporting to be that of Vincent Hickey; that he, DS Robbins, did not transcribe his contemporaneous notes into his pocket book; that he did not know what had become of those notes and that he had on leaving the Regional Crime Squad handed in his pocket books, probably to the Bilston office. DS Robbins also said to those officers that his notes would only be 70% of what had actually been said. They were not a verbatim account, they were simply his best effort to record what was being said. His contemporaneous notes were typed up by a young typist who had had trouble reading his handwriting.
The results of the ESDA testing were put to DS Robbins in interview on the 20th February of this year. DS Robbins said that he did not wish to alter any of his earlier answers to officers from the Merseyside Police; that he knew nothing of any purported statement by Vincent Hickey being shown to Patrick Molloy and that he would not have been a party to any such proceeding.
Mr Butterworth in his report explains the complexity of speech and reports on a study he performed using three men who were first interviewed about some recent event in which they had been involved and then asked to dictate a statement describing the same event so that that statement corresponded as closely as possible to the answers they had given in interview. The results of that exercise showed that the number of identical clauses produced by the three subjects was two and the number of similar clauses 6 as against 65 clauses which were different. Overall, 2.7% of statement clauses and interview clauses were identical and 8.2% were similar. These figures are to be compared with the percentages of identical and similar clauses to be found in the interview and statement of Patrick Molloy, namely 33.8% identical and 17.6% similar.
Mr Butterworth’s conclusion with which Dr Hardcastle agreed, was that the record of the interview and the written statement were not made independently of each other. There were three possibilities:
1. That both had been written with reference to a third unknown source;
2. That the written statement had been derived from the record of interview; or
3. That the record of interview had been derived from the written statement.
It was not possible for Mr Butterworth to say which of these possibilities is the more likely.
Mr Butterworth expressed the view that Patrick Molloy’s background and the situation in which he was on the 10th December 1978 made it less likely rather than more likely that he would use identical or similar clauses when being interviewed and dictating Exhibit 54. We have reservations about these views expressed by Mr Butterworth. We also have some concern that Mr Butterworth’s opinions are based on one exercise performed by three men all of whom were younger than Patrick Molloy and had achieved a much higher academic level than he had, and would consequently have had a wider and more flexible vocabulary. Having stated those reservations, we are nevertheless disturbed by what appears to be an abnormally high coincidence between the terms recorded as having been used in the interview and those used in the written statement.
The other evidence related to the time taken by the alleged interview and the time recorded as having been taken in the writing of Exhibit 54. We have read and we heard a considerable amount of detailed evidence dealing with the speed at which notes and statements can be written. We learn that research has been done in this field by, among others, two of the witnesses who were called before us, Mr Davies who has been the lecturer in Bibliography and Palaeography at Birmingham University since 1973 and who has given evidence as a forensic handwriting consultant since 1974, and Dr Hardcastle, the Forensic Document Examiner called by the Crown.
This research was into the speed at which notes and statements are written. The speed of writing is expressed in characters per minutes (c.p.m.). Research into notes accepted as genuine notes taken by police officers showed that speeds varied between 44 c.p.m. and 155 c.p.m. Controlled tests showed speeds varying between 90 c.p.m. and 120 c.p.m. when the writers were simply copying written passages. Controlled tests when writers were attempting to make contemporaneous records of speech showed speeds varying between 124 c.p.m. and 158 c.p.m. for periods in excess of an hour. At times some writers achieved speeds of 160 to 165 c.p.m. for short periods. No one achieved the speed of 170 c.p.m., although in Dr Hardcastle’s view speeds of between 150 and 190 c.p.m. may be achievable by a few people.
DS Robbins’ notes for the interview of Patrick Molloy which began at 1500 hours and ended at 1535 hours have survived. During that 35 minute period, Patrick Molloy was interviewed by DI Turner. DS Robbins wrote those notes at an average speed of 87 c.p.m. That does not mean that DS Robbins may not have been writing more quickly than that and had periods of rest between writing; nor, even if the writing was an almost continuous process, that he was not capable of writing faster than that. Nevertheless those notes have the appearance of having been written in a hurry, the characters being slurred and abbreviations being used. DS Robbins did tell the officers of the Merseyside police, who interviewed him on the 11th March 1992, that he had only been able to take down about 70% of what had actually been said.
The number of characters in the typed version of the interview which was said to have taken place between 1540 and 1600 hours and to have been recorded contemporaneously by DS Robbins was 3,568. Dr Hardcastle had reduced this number to 3,200 to allow for the typist having expanded words which might have been abbreviated in a note and having included punctuation not used in a note. For DS Robbins to have been able to take down all the purported interview of some 3,200 characters between 1540 and 1600 hours he would have had to write at a speed of 160 c.p.m. The custody record showed that interview starting at 1545. Were that interview only to have lasted 15 minutes the speed DS Robbins would have had to achieve was 213 c.p.m., a speed which Dr Hardcastle described as impossible. Alternatively, if DS Robbins had written at the same speed as he wrote his notes for the 1500 to 1535 interview, the note taking would have occupied nearly 37 minutes.
With regard to the written statement, Exhibit 54, that, omitting the final endorsement written by DC Perkins setting out the times between which the statement was said to have been taken, comprised 2,555 characters. If the whole 20 minute period is allowed for writing the opening caption of 160 characters, the main body of the statement of 2,263 characters and Patrick Molloy’s written endorsement containing 132 characters and no allowance made for any pauses then the average speed of the writing must have been 127 c.p.m. It was the evidence of DC Perkins that the initial caption and the main body of the statement having been written by him at Patrick Molloy’s dictation, he then read the statement to Patrick Molloy, some corrections were made and then the statement was given to Patrick Molloy for him to read. Patrick Molloy then wrote the final endorsement and signed that final endorsement, the statement and the various amendments. Dr Hardcastle allowed 5 minutes for these matters which means that the 2,555 characters would have had to be written by DC Perkins and Patrick Molloy at a average rate of 170 c.p.m. Dr Hardcastle observed, when he gave evidence, that he had not come across a rate of writing as high as 170 c.p.m.
Mr Davies would allow a total of 8.9 minutes for the readings of the statement, the alterations, the writing by Patrick Molloy of his endorsement and his signatures. That would leave 11.1 minutes for DC Perkins to write 2,374 characters, that is to say the opening caption and the main body less Patrick Molloy’s signatures, if the statement was to be completed in 20 minutes. This would require DC Perkins to write at a rate of 214 c.p.m.
Both Mr Davies and Mr Radley were of the view that DC Perkins’ writing in Exhibit 54 did not display any indication of having been written very quickly. The characters were not slurred. The punctuation was correct. Abbreviations were rarely used. Other time allowances had to be made such as time for DC Perkins to leave the cell to get statement paper, once Patrick Molloy had said that he wished to make a written statement. Further the evidence of police officers was that Patrick Molloy had a somewhat ponderous or slow way of speaking and that there were times when there were “poignant pauses” and where Patrick Molloy sat with his head in his hands saying nothing.
On the other hand there are imponderables which work in the opposite direction. First, it was clearly the practice for police interviews to be timed to the nearest five minutes. It would follow that a timing of 4 to 4.20 pm could represent a period of up to 25 minutes. On the other hand it could represent a period as short as 15 minutes. Next the timing written on the statement could refer merely to the time required for writing the main body of the statement.
Even taking account of these factors, the conclusion that we reach is that it is most improbable, if not impossible, that the interview as recounted by DC Perkins at the appellant’s trial and the taking of the statement Exhibit 54 occurred as that witness told the jury they did.
This conclusion derives further support from the apparent disappearance of DS Robbins’ notes of the interview and the appearance of a draft statement by DC Perkins covering the alleged 3.40 pm interview. If what occurred at that interview was, as Patrick Molloy maintained to his lawyers, that he was being shown a statement purporting to be that of Vincent Hickey and that was accurately recorded by DS Robbins in his notes, the belief being that Vincent Hickey who was being interviewed on that Sunday afternoon would sign a statement implicating Patrick Molloy and James Robinson in the Yew Tree Farm offences, then those notes would have had to be destroyed because although, apparently, Vincent Hickey did dictate such a statement, he refused to sign it. It would then have been necessary to produce a different “interview” making no reference to a statement by Vincent Hickey and the likely source for notes of such an “interview” would be Exhibit 54 itself. DC Perkins’ draft statement disclosed since the conclusion of the first appeal setting out the alleged 3.40 pm interview, is said by the respondent in their skeleton to be “simply a typed copy of DC Perkins’ notes of the crucial interview.” This is a fair inference because both DC Leeke and DS Robbins, when shown this document in early 1995, said they had never seen it before. The only suggestion made by DS Robbins was that DC Perkins had prepared the draft statement so that he would not have to part with his pocket book. The uncomfortable fact is that this draft statement has survived whereas the original notes made by DS Robbins have not.
Mr Mansfield submitted that further doubt is cast on the police version of what occurred by way of interviews of Patrick Molloy on Sunday 10th December 1978 by the emergence in 1994 of further documents, namely a draft copy statement of DC Perkins, a draft statement of DS Brian Joseph Harrison, a draft statement of DS Dennis Walker and a schedule of interviews with Patrick Molloy, the author of which is unknown. The draft statements are undated. There are differences between the draft statements and the witness statements forming part of the committal papers. When the draft statement of DC Perkins came to light, DS Robbins was, on the 28th March 1995, shown the document and said that he had no recollection of it. DS Walker, being shown a copy of the draft statement headed with his name and number on the 3rd October 1994, said that with the passage of time he could not recall making the draft or its purpose. He pointed out that there was no signature on it. His recollection was that he had only submitted one statement to the murder incident control which was the evidence used at the trial.
The schedule of interviews contains four columns. The first is the time the interview commenced, the second the date, the third the officers involved and the fourth how the interview was recorded. Crucially, for Sunday 10th December 1978, interviews are shown as starting at 11.30 am, 1.15 pm, 3.45 pm and 6.45 pm. For the interviews at 1.15 and 3.45 pm DC Leeke is shown as the note taker. It is further said that at 1.15 pm DI Turner, DS Walker and DS Robbins conducted the interview and each referred to and signed the notes taken by DC Leeke. Similarly, for the 3.45 pm interview, the schedule shows DI Turner, DS Walker, DS Robbins and DC Perkins each referring to DC Leeke’s notes and signing them. The schedule for the 11.30 am interview shows DS Robbins as the note taker and DC Perkins and DC Leeke referring to and signing his notes.
The matter is made more mysterious in that the record of visits to persons detained in cell or detention room for Patrick Molloy on the 10th December 1978 does not show a visit to Patrick Molloy’s cell for the purpose of interview at 11.30 am or at 1.15 pm. An interview with DI Turner and DS Walker at 1440 hours is shown, as is an interview with DC Perkins and DC Leeke at 1545. No interview is shown either at 1500 or 1845 on that day. Further in the two interviews that are recorded, DS Robbins is not listed as an officer visiting Patrick Molloy in his cell.
Added to these factors, submitted Mr Mansfield, were the length of time in custody, the number of interviews and the persistence of police questioning and the rejection by the police of Patrick Molloy’s denials which preceded the admissions made on the afternoon of Sunday 10th December. Patrick Molloy did not see a solicitor until the 18th December and the submission made on his behalf in this appeal is that it was part of the police strategy to see that Patrick Molloy was kept isolated from the outside world and in particular from legal advice. These, it is suggested, were deliberate breaches of the Judges’ Rules and Section 62 of the 1977 Criminal Law Act. Next complaint is made that Patrick Molloy was not charged as soon as the police had evidence on which to base charges. It is said that the police had evidence on which they could have charged Patrick Molloy and brought him before the magistrates in respect of the burglary from the Tamworth butcher’s shop on the night of the 20/21st September 1978 by the evening of the day of his arrest, that is to say by the evening of Friday 8th December. Patrick Molloy was not charged with that offence until Monday 11th December, after he had made the admissions on the Sunday afternoon to being present at Yew Tree Farm. The police, it is said, had evidence with which to charge Patrick Molloy at least with burglary at Yew Tree Farm by the evening of Sunday 10th December. Yet he was not charged with the Yew Tree Farm offences until Thursday 28th December. Finally Mr Mansfield made complaint that copies of Exhibit 54 were withheld from Patrick Molloy’s solicitor, Mr Wiggall, despite his having written requesting such a copy on the 18th December 1978 and again on the 22nd December 1978.
At the outset of considering these complaints, this court faces the difficulty that none of these matters was raised at the trial. Consequently there was no evidence on whether Patrick Molloy did ask for a solicitor, or if he did whether there was any proper reason to refuse. Realistically Mr Roberts for the Crown accepts that by the 22nd December 1978 Patrick Molloy was instructing his solicitor that he had made requests while in police custody to see a solicitor, although the occasions on which these requests were made and the persons to whom these requests were made were never identified. The respondent invites us to deal with the matter on the basis that such requests probably were made and there was not, on the material available at this time any valid reason for refusing. What does emerge from the evidence of the police officers themselves is that on the Sunday afternoon before making any confession Patrick Molloy said to DS Walker that he needed advice and then asked to see “the boss” which DS Walker believed was a reference to DCS Stewart, the officer in overall charge of the investigation, and that Patrick Molloy when told that it would take some time to contact the boss asked to see DC Perkins. When DC Perkins entered the cell, Patrick Molloy repeated that he needed advice. It is said that at that moment further questioning should have been suspended until a solicitor had been obtained for Patrick Molloy.
There was, almost certainly a breach of the principle set out in Appendix A to the Judges’ Rules, published in June 1978, which was the version current at the time of the trial. Appendix A(c) on page 5 read:
“Any person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so.”
Complaint was also made that there had been a breach of Section 62 of the Criminal Law Act 1977 which came into force on the 19th June 1978. That section read:
“Where any person has been arrested and is being held in custody in a police station or other premises, he shall be entitled to have information of his arrest and of the place where he is being held sent to one person reasonably named by him without delay or, where some delay is necessary in the interest of the investigation or prevention of crime or the apprehension of offenders, with no more delay than is so necessary.”
It seems that there may well have been notices at Bournville Police Station to which Patrick Molloy was taken on his arrest and in Wombourne police station to which he was transferred at 1345 on Friday the 8th December, drawing a detainee’s attention to this entitlement but it was not the practice of the custody officer at Wombourne police station to draw the attention of detainees to the notices concerning Section 62. On this aspect of the case we cannot know whether Patrick Molloy saw the notices, still less whether he made any request that his arrest and the place where he was being held should be notified to a person named by him. In our view, if there was a breach of Section 62, it would have added little or nothing to the breach of the rule relating to consultation with a solicitor.
There also appears to have been breaches of the principle which is in the same Appendix to the Judges’ Rules under paragraph (d), namely:
“That when a police officer who is making enquiries of any person about an offence has enough evidence to prefer a charge against that person for that offence he should without delay cause that person to be charged or informed that he may be prosecuted for that offence.”
By 10 o’clock on the evening of Friday 8th December 1978 the police had enough evidence to prefer a charge against Patrick Molloy for the burglary of the Butcher’s shop at Tamworth. The consequence of that under Rule III (b) of the Judges’ Rules was that further questions relating to the Tamworth butcher’s burglary should not have been put to Patrick Molloy unless the circumstances were exceptional and such questions were necessary for one of the purposes set out in that Rule. Had Patrick Molloy been charged with that offence on the Friday evening, it would not have prevented the police questioning him concerning the Yew Tree Farm offences on the Saturday and Sunday. It might have led to his being brought before the Magistrates on the Saturday morning and legal aid being granted at that appearance.
The failure to charge Patrick Molloy with the Yew Tree Farm offences until the 28th December was not relevant to the way in which the interview and the written statement Exhibit 54 were obtained on the Sunday afternoon, because such a charge could only have come after that interview and the making of that statement. Further, it seems to us that it was correct for the police to wish to take the opinion of the Director of Public Prosecutions on the question whether Patrick Molloy should face any, and if so what, charge in respect of the killing of Carl Bridgewater as opposed to the burglary of the farm.
The delay in the supply of a copy of Exhibit 54 to Patrick Molloy’s solicitor again did not affect the way in which the confessions were obtained. Like the delay in charging Patrick Molloy with the murder of Carl Bridgewater, the significance of this delay, if any, consists in the light it throws on the attitude of the police who dealt with Patrick Molloy at that time.
Mr Mansfield submitted that on this ground alone, comprising these various complaints of breaches of the Judges’ Rules, Section 62 and the delay in supplying a copy of Exhibit 54, Exhibit 54 is inadmissible. We accept that these matters add to the unsatisfactory nature of the method by which Patrick Molloy’s confessions were obtained. It is impossible now to know whether this group of complaints would have lead to the exclusion of this evidence had these matters been raised at a trial within a trial. The test was “were these confessions made voluntarily?” Breaches of the Judges’ Rules did not of themselves result in statements becoming inadmissible if the court, having taken into account the breaches was nevertheless satisfied that the statements were voluntary.
The final material on which counsel relied in presenting this part of Patrick Molloy’s appeal was brought to our attention by his junior counsel Mr Wood. This material related in the main to the credibility of DC Perkins. In 1989 the Assistant Chief Constable of the West Yorkshire Police Force conducted an investigation into the Serious Crime Squad of the West Midland Police under the supervision of the Police Complaints Authority. Ninety-three separate cases were investigated. DC Perkins had been involved in 23 of those cases. In each of those cases there were complaints of alleged fabrication of evidence and, in some cases allegations, of violence by police officers.
Prior to the appointment of the Assistant Chief Constable of the West Yorkshire Police to investigate the Serious Crime Squad, DC Perkins had already on the 8th June 1989 been convicted in disciplinary proceedings of falsehood in connection with the prosecution a Harry Elwell and a Clifford Jones. Before looking at the facts of that matter, a potted history of DC Perkins career with the police can be given. He was born in 1946 and joined the police in 1965. From 1972 to 1983 he was a member of the No. 4 Regional Crime Squad. In 1983 he joined the Serious Crime Squad of the West Midlands Constabulary. On the 8th June 1989 he was convicted of the deliberate falsehood, as we have already stated. Thereafter he was on sick leave due to anxiety and depression. He resigned in 1991 and died of cancer in October 1992. On his resignation in 1991 he ceased to be amenable to police discipline.
The material produced to this court showed that on a number of occasions where queries had arisen about the conduct of police investigations in which DC Perkins had been involved and it was sought to examine the originals of documents such as allegedly contemporaneous notes, written confessions and officers’ pocket books, those documents could not be traced.
In the case of Elwell and Jones, they were two of four men arrested on the 15th July 1986 for burglary, the other two being called Turner and O’Brien. Elwell was interviewed by DC Perkins and a DS Reynolds. At the trial before HHJ Stuart White, as he then was, at the Wolverhampton Crown Court in June 1987, ESDA evidence was called which suggested that pages 3 and 4 of the interview of Clifford Jones by a DS Hornby and a DC McClellan had been inserted and that possibly the signatures had been forged. With regard to the interviewing of Elwell, the notes taken by DS Reynolds were not signed by Elwell. The notes recorded that the interview had taken four minutes in total, which time would have included the reading over of the notes to Elwell before he was invited to sign them. A reconstruction showed that DS Reynolds was unable to write out the notes of the interview in under four minutes (it taking him 4 minutes and 25 seconds) and that it took him almost a further minute to read them over. At the close of the prosecution’s case the judge said that he was not satisfied that pages 3 and 4 of the Jones interview had not been inserted and that he was concerned over the case against O’Brien. The prosecution did not proceed further against Elwell or Turner. Following the collapse of the trial the judge wrote to the Chief Constable expressing his serious disquiet. That lead to disciplinary proceedings against DC Perkins and DS Reynolds which in turn lead to the decision of the Chief Constable that both officers were guilty of falsehood. In the course of the investigation of Elwell’s complaint, DC Perkins made a statement in which he admitted preparing in the Elwell case:
“a set of fictitious notes …. to assist in the “duping” of persons who had been arrested by myself and other officers.”
In that statement that officer admitted that a suggestion had been made that a set of untrue written admissions purporting to have been made by Elwell should be prepared. They could be shown to Elwell’s co-accused to gain admissions from them. DC Perkins referred to that as:
“This unorthodox method”
The statement said that the times on these notes were to coincide with the times of the real interview with Elwell so that Elwell’s co-accused would know that in fact he had been interviewed at such a time. The notes were written out and prepared as if genuine but were never used.
Part of the evidence against Perkins and Reynolds in these disciplinary proceedings was that of a Dr. Baxendale, a forensic document examiner. In a later case in June 1991 Dr Baxendale’s evidence on speeds of writing had been challenged effectively on the basis that he was not expert or qualified in that subject. That lead to an appeal by Reynolds against the disciplinary finding of June 1989 which, on the 28th June 1995, was successful. Despite that appeal, the fact remains that DC Perkins admitted being involved in the preparation of a false set of interview notes for the purpose of tricking a co-accused into making a confession, a scheme which closely resembles what the expert evidence indicates occurred in the present case.
These matters came to the attention of this court in the case of Cheetham unreported but decided on the 30th July 1991, the court being presided over by Lord Lane CJ. This court, in the judgment in that case, said that Perkins and Reynolds had been shown in effect to have been guilty of what was tantamount to perjury and were consequently in the particular circumstances unreliable. We see nothing in the successful appeal of Reynolds which upsets the views expressed by this court about DC Perkins in the case of Cheetham. We are satisfied that DC Perkins was an officer who was prepared to resort to deceit to obtain evidence; that that is probably what occurred in the present case with regard to the interview and the written statement Exhibit 54 of Patrick Molloy and that consequently those confessions were obtained by oppression and were inadmissible as evidence in a court of law. The Crown has not sought to persuade us that the subsequent interviews of Patrick Molloy by other officers in which he repeated his admissions of his presence at Yew Tree Farm on the afternoon of the 19th September were not tainted by the deceit used to obtain the initial confessions. In our judgment, in the particular circumstances of this case, the Crown was right not to do so.
We say at this point that we would have directed that the papers relating to the interview and the statement be sent to the Director of Public Prosecutions were it not for the fact that that has already been done by the Merseyside Constabulary.
It was submitted on behalf of the appellant, Patrick Molloy, that even if there had been no trick, as disclosed by the ESDA evidence, Patrick Molloy’s confessions were inadmissible because the Crown could not, had their admissibility been challenged at the trial, and cannot now establish that they were voluntary. Alternatively, these confessions would today be ruled inadmissible, and this is a further reason for this court holding that Patrick Molloy’s convictions were unsafe. This ground was developed by referring us to various matters which, it was submitted, when viewed together would have made it impossible for the trial judge, and make it impossible for this court, to say that these statements were not obtained by oppression.
The first matter relied upon by Mr Mansfield was that Patrick Molloy once he was arrested was “kept from the outside world”. It was said that the appellant had been deprived of his rights under Section 62 of the Criminal Law Act 1977 which had come into force on the 19th June 1978. We have already set out the terms of this section.
Patrick Molloy was arrested for the burglary of the Tamworth Co-operative butcher on the morning of the 8th December 1978. It was conceded that there was no direct evidence whether he was or was not informed of his right under Section 62, although there was evidence that notices outlining the provisions of the section were displayed in conspicuous places at police stations, as had been suggested in the Home Office Circular of the 28th April 1978. The complaint that is made is that there was a failure to arrest Patrick Molloy for the offence of the murder of Carl Bridgewater and that had he been arrested for murder he might have exercised his rights under the section. There is no suggestion as to the person Patrick Molloy might have named. The only persons with whom Patrick Molloy seemed to have close contact at that time were James Robinson, who was already in police custody and Carol Bradbury. Had Patrick Molloy named either of those, then it seems to us that the situation in which the section itself recognises permissible delay would have arisen. We say at once that we are not impressed by this point.
The other aspect of Patrick Molloy being kept from the outside world has more substance. It is that he was not permitted to consult a solicitor. It must remain uncertain whether Patrick Molloy requested a solicitor. He did not complain that he had not been allowed to see a solicitor when first interviewed by a solicitor on the 18th December 1978. The attendance note originally dated the 28th December 1978 and then redated the 21st December 1978 recorded Patrick Molloy as saying that he had not asked to be represented until Friday the 8th December following his arrest on the 7th but then had made repeated requests. There is no recorded request for a solicitor in any of the interviews of Patrick Molloy. Nor does any such request appear in, what we shall call for convenience, the custody records. No such request was put to any police witness in cross-examination at the trial. Nevertheless counsel for the Crown accept that it would be fair to proceed on the basis that Patrick Molloy did make a request for a solicitor. We have some reservation about this concession arising from the probability that on his first appearance before the Magistrates Patrick Molloy did not seek legal representation although he would, if normal practice were followed, have been invited to do so. Further, we are mindful that he was instructing Mr Wiggall that his confessions were untrue yet he was still making admissions of involvement in Yew Tree Farm to the police.
Mr Mansfield, in the light of the concession made by the respondent’s counsel, invited us to conclude that any refusal of legal representation by the police was unjustified and that it was material in that had Patrick Molloy had legal representation it is unlikely that he would have made any admission.
The next matter relied upon was delay in charging Patrick Molloy. First the delay in charging him with the Tamworth burglary. The police had enough evidence to prefer a charge against him for that offence by the afternoon of Friday 8th December 1978 and should have charged him. Had they done so Patrick Molloy would have been brought before the Magistrates under Section 38(4) of the Magistrates’ Courts Act 1952 on the Saturday morning and may well have requested and been granted legal representation. In the event Patrick Molloy was not charged with the Tamworth meat burglary until the morning of Monday 11th December 1978, shortly before being taken before the Magistrates.
The other delay in charging Patrick Molloy, of which complaint is made is the delay in charging him with any offence in relation to Yew Tree Farm. It is said that by the evening of Sunday 10th December the police had sufficient evidence to charge him with the offence of burglary of Yew Tree Farm at the very least. Yet, between that time and the afternoon of the 21st December 1978 when the Director of Public Prosecutions’ Office instructed the police to treat Patrick Molloy as though he had been charged with the murder of Carl Bridgewater, a further nine interviews were to take place without his having been charged. After the instruction was given to the police, a further four interviews occurred, one on the 21st December starting at 6 pm and three after he was charged on the 28th December, being interviews at 2.40 pm that day, a conversation in the Police car taking Patrick Molloy to Shrewsbury Prison that same afternoon and a further interview at 11.15 am on the 4th January 1979.
We have already summarised the contents of the first of these interviews of Patrick Molloy by DC Eccleshall, starting at 6 pm on the 21st of December 1978. The interview went over Molloy’s movements on the 19th of September 1978 up to 3 pm as described by Molloy to DI Wordley in interview and in written notes made by Molloy on the 15th December. The answers to DC Eccleshall added little to the information given on the 15th of December except that the Cortina estate car which James Robinson and John Burkett had used for the burglary of meat on the night of the 18th/19th September and which Robinson had used to collect Carol Bradbury from hospital on the morning of the 19th had been light blue or grey and had still been in the car park near the cinema in Selly Oak the following Sunday.
It may well have been the case that had the Prosecution at trial been asked not to lead evidence of this interview, they would have omitted it from their case, the ground being already covered by DI Wordley’s evidence of the interviews on the 15th of December. We agree with the submissions of the respondent’s Counsel that this interview did not add to the Prosecution’s case at trial and that its exclusion could not have affected the admissibility of Patrick Molloy’s earlier confessions as evidence against him. Having accepted those submissions, the fact remains that this interview should not have occurred. We do not know whether it was held because the Director’s instruction had failed to reach DI Wordley and DC Eccleshall, and if that was the explanation, why the Director’s instruction failed to get through to these officers who were then dealing with Molloy.
Prior to the start of the trial, Mr Gorman QC for Patrick Molloy wrote to Prosecuting Counsel requesting him to exclude the interviews at 2.40 pm on the 28th of December and at 11.15 am on the 4th of January 1979. No evidence was given concerning the first of those two interviews. Evidence was given of part of the second of those two interviews at the request of Mr Gorman QC, namely those answers by Patrick Molloy to the effect that he had a particular method of searching chests of drawers which involved stacking the drawers as he did so.
The Prosecution were not asked to exclude evidence of the conversation in the police car taking Molloy to Shrewsbury Prison when he was said to have volunteered to DS Harrison and DC Davies that Vincent Hickey and Michael Hickey had picked up James Robinson and himself at the California public house and taken them to the Dog and Partridge where they had got into a light blue Ford Cortina. The respondents submit that Rule III of the Judges’ Rules did not apply to conversations of this kind. In any event, the remarks made by Patrick Molloy were clearly voluntary so that a breach of Rule III would not have resulted in their exclusion, had an application to exclude been made. Nor, submitted the respondents, can any complaint be properly made now based on either Rule I or Rule II of the Judges’ Rules. The contents of that part of the interview which was led in evidence and of the conversation in the car did not add to the admissions already made by Patrick Molloy and, consequently, their introduction into the evidence placed before the jury cannot have prejudiced Molloy’s case or rendered his convictions unsafe.
We are disposed to accept these submissions of the respondents’ Counsel. What we do not accept are the submissions made in respect of the conversation in the police car dealing with the draft statement of DS Harrison which has come to light since the hearing of the first appeal. We shall examine this matter later in this judgment.
Next complaint is made of the obstructive attitude of the police once Patrick Molloy had been granted legal representation and Legal Aid by the Magistrates. Initially it was submitted that DCI Watson had withheld from the solicitor who saw Patrick Molloy on the 18th December 1978 that Molloy was a suspect in the Carl Bridgewater murder and had made statements admitting his presence at Yew Tree Farm. Further it was questioned whether the information given to the solicitor that Patrick Molloy would appear in court that day at 10 am whereas in fact he appeared before a special court at 9 am was a further example of the police making life difficult for those representing Patrick Molloy. Finally, we were referred to the correspondence between Mr Wiggall and DCI Watson concerning the statement made by Patrick Molloy. Mr Wiggall had written on the 18th December 1978 to that officer asking him to have a copy of that statement available at court on Thursday 21st December. On the 20th December the police sent to Mr Wiggall a copy of Patrick Molloy’s statement Exhibit 53 in which he admitted the Tamworth offence. In a letter dictated the 22nd December, but not sent until the 29th December, Mr Wiggall pointed out that the statement sent was not the one he was seeking. In that letter Mr Wiggall also stated that his client’s instructions were that he had not been involved in any offence other than those set out in Exhibit 53, and further, that whilst in police custody his client had made requests to see a solicitor. Mr Wiggall sent a second letter on the 29th December, pointing out that Patrick Molloy had by that time been charged with murder and requesting the second statement.
Again we say immediately that we are not impressed by this allegation. It is clear from the attendance note of the 18th December 1978, that the solicitor who attended on Patrick Molloy on that day had, prior to his seeing Patrick Molloy, been told by DCI Watson that Patrick Molloy was involved in the murder and had made a statement to confirm his involvement with that crime. The time for the sitting of the court on the 18th December given to Mr Wiggall was supplied by court staff and not by the police and was an innocent mistake. Mr Mansfield conceded that the initial letter requesting a statement was ambiguous, and might have referred to Exhibit 53 or Exhibit 54 There was no evidence that persuades us that the police were being obstructive, nor was there any complaint by Mr Wiggall to this effect of which we have been made aware.
The other matters on which counsel for Patrick Molloy relied were the length of time he had been in custody before he confessed on the afternoon of Sunday 10th December, namely 55¼ hours; the number and length of interviews prior to his confessing, five interviews lasting some 10 hours in just over two days; the police’s rejection of his repeated denials of being present at Yew Tree Farm; the fact that the interview on the 8th December lasted until 10 pm and that on the Saturday until after 11 pm; that Patrick Molloy was interviewed in his cell and not in an interview room; finally the inconsistencies between the various admissions made by Patrick Molloy, for example, as to the public house at which the offence was planned and where all four met, and the inconsistencies between Patrick Molloy’s admissions and the known facts. It is said that those inconsistencies may be indications of the admissions being made under pressure.
The basic rule of admissibility of statements by an accused is that stated by Lord Sumner in R v Ibrahim [1914] AC 599 at 609, as added to by Lord Parker CJ in Callis v Gunn (1964) 48 Cr App R 36 namely:
“It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage exercised or held out by a person in authority, or by oppression.”
It was common ground that the truth or falsity of the statements themselves was not a relevant factor for a court in deciding whether the statements were or were not voluntary. In 1979, as the introduction to the Judges’ Rules stated, there were certain basic principles which the Judges’ Rules did not affect. One of those rules was that police officers, otherwise than by arrest, cannot compel any person against his will to come to or remain in any police station. Another was that every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor, even if he were in custody, provided that in such a case no unreasonable delay or hindrance would be caused to the process of investigation or the administration of justice by his doing so. A third principle was that when a police officer who was making enquiries of any person about an offence had enough evidence to prefer a charge against that person for the offence, he should without delay cause that person to be charged or informed that he might be prosecuted. The overriding principle was that any statement made by a person should only be evidence against that person if it had been made voluntarily.
Rule III of the Judges’ Rules provided:
“(a) Where a person is charged with or informed that he may be prosecuted for an offence, he shall be cautioned in the following terms:”
and then is set out a caution which is in somewhat stricter terms than the caution given to a person in respect of whom the officer has evidence giving reasonable grounds for suspecting that he has committed an offence. The difference being that the person who has been charged is told that whatever he says will be taken down in writing and may be given in evidence, as opposed to the suspect being told that what he says may be put into writing and given in evidence. Rule III (b) provides:
“It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. Such questions may be put where they are necessary for the purpose of preventing or minimising harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement.”
The Rule then goes on to set out the caution which should be used in such circumstances. The Rule requires that any questions put and answers given relating to the offence must be contemporaneously recorded in full and the record signed by that person, or if he refuses, by the interrogating officer. The times of the questioning have to be recorded as does the place where the questioning occurs.
It was permissible for the Police to question a person who had been charged or told he might be prosecuted for one or more offences, about other offences, R v Buchan (1964) 48 Cr App R 126.
On behalf of Patrick Molloy it is submitted that the basic principles set out above and the Judges’ Rules were breached by the police.
The Judges’ Rules were rules of practice. The existence of breaches of the Judges’ Rules, although relevant to the issue whether the statement of the defendant had been a voluntary statement or not, were not conclusive of that question, see R v May (1952) 36 Cr App R 91 per Lord Goddard CJ page 93. If the court finds as a fact that the confession was not voluntary, the confession has to be excluded. On the contrary if the court finds that the confession was voluntary, the judge still has a discretion to exclude it if the interests of a defendant having a fair trial so require. The question whether the confession is or is not voluntary is a question of fact. These propositions are well established and can be found in, inter alia, Miller (1986) 83 Cr App R 192.
There is no single definition of “oppression”. At the time of the trial guidance as to the meaning of this word was to be found in the observations of Sachs J in Martin Priestley (1967) 51 Cr App R 1 where that judge said:
“This word in the context of the principles under consideration import something which tends to sap, and has sapped, that free will which must exist before a confession is voluntary……… Whether or not there is oppression in an individual case depends on many elements. I am not going into all of them. They include such things as the length of time of any individual period of questioning, the length of time intervening between periods of questioning, whether the accused person has been given proper refreshment or not, and the characteristics of the person who makes the statement.”
Sachs J recognised that what might be oppressive for one person might not be for another experienced in the ways of the world. He made these further observations:
“In these days of ever-mounting crime, it is indeed essential not to fetter the hands of the police unnecessarily so as to hinder them in their difficult and vital tasks.”
and:
“Next to be noted is that to point out to a man that he is lying is not of itself either oppressive or wrong. Nor is it oppressive or wrong to give a man a further opportunity to tell the truth.”
In Prager (1972) 56 Cr App R 151, Edmund Davies LJ adopted this passage from Sachs J’s judgment and approved of Lord McDermot’s definition of “oppressive questioning” as:
“Questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent.”
The Police and Criminal Evidence Act 1984, Section 76(8) defined “oppression” as including:
“Torture, inhuman or degrading treatment and the use or threat of violence (whether or not amounting to torture).”
In R v Fulling (1987) 85 Cr App R 136, the court at page 142, in a case involving Section 76(2)(a) of the Police and Criminal Evidence Act, approved the Oxford English Dictionary definition of “oppression”:
“The exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors etc., or the imposition of unreasonable or unjust burdens.”
Turning to the evidence in this case. The complaint of physical ill-treatment and threats of violence were not made by Patrick Molloy to his solicitor at the first opportunity. After service of the committal papers upon him, Patrick Molloy complained to his solicitor that the police had subjected him to violence; that DC Perkins had hit him and in doing so had broken his denture. Clearly if that had occurred prior to the making of Exhibit 54, that would have amounted to oppression and his confessions would have been inadmissible. Those allegations were not made at the trial. Indeed Patrick Molloy instructed his lawyers that he did not want them to “particularly attack the police”. Our attention has been drawn to two letters written by Patrick Molloy after his conviction which would be surprising letters indeed had he been subjected to physical violence whilst in police custody. So far as this court is aware, there never was any evidence of physical injury to Mr Molloy at that time and no independent evidence of any damage to his denture. Following the making of Exhibit 54, Patrick Molloy was never in contact again with DC Perkins, DC Leeke or DS Robbins. He was seen during the evening of the 10th December by DCS Stewart, DCI Watson and DC Lycett. He made no complaint, although he was given the chance to make such a complaint when DCS Stewart asked him whether he was all right, and, a little later, whether there was anything else he wanted to say.
Bearing in mind these considerations, we consider that any evidence by Patrick Molloy that he had been physically ill treated by the police would have been rejected by the trial judge. We say that we think it very doubtful that Patrick Molloy would have made such allegations on oath in a witness box where he was subject to cross-examination.
The Crown’s response is that these confessions, setting to one side the trick conceded as having been revealed by the ESDA evidence, were voluntary. That is the conclusion which would have been arrived at by the trial judge following a voire dire.
That this would have been the conclusion is supported by these factors: first, Patrick Molloy’s evidence would have been to the effect that there was little or no dispute as to the accuracy of the records of the various interviews and he would have conceded that the confessions made were statements he had made to the officers present. Secondly, Patrick Molloy was a person used to custody; he had in the past served two terms of imprisonment of 5 years. Thirdly, his evidence of being subjected to violence would not have been accepted, there being no independent evidence of injury or damage to his denture, and his complaints of violence to his solicitor not being made on the first possible occasion and no such complaint ever having been made to the police prior to his trial. The failure to charge Patrick Molloy with the Tamworth burglary was a breach of the Judges’ Rules but was immaterial because charging him with the Tamworth meat burglary would not have precluded his being questioned about the murder nor would it have altered the form of caution which would have preceded questioning about the murder. Moreover, Patrick Molloy continued to confess after he had been charged with the Tamworth burglary.
The Crown did not accept that the fact that Patrick Molloy did not have access to a solicitor until the Magistrates granted Legal Aid on the 14th December was an irregularity. Their further submission is that if that was an irregularity it would not have lead to the exclusion of Patrick Molloy’s confessions.
As recorded above, the Crown accept that it would prefer to proceed in relation to this point on the basis that Patrick Molloy had asked to be allowed to see a solicitor before confessing. The Crown say that this was an investigation into a very serious crime which had plainly been carried out by ruthless and unscrupulous criminals. The investigation was continuing. When Patrick Molloy was arrested four persons had become suspects, as a result of the Chapel Farm robbery and the subsequent statements made by Vincent Hickey, of whom one, Michael Hickey, was still at large. It cannot be known what evidence police officers would have given on the question whether Patrick Molloy had asked for a solicitor, and, if they had accepted that such a request had been made, what evidence they would have given as to the reason for refusing such a request. The Crown says it was open to the senior officers in the case to take the view that both the investigation and the administration of justice might be prejudiced if a solicitor, instructed by Patrick Molloy, were to be instrumental wittingly or unwittingly in allowing important information to get into the wrong hands. It is suggested that the judge might well have found, had this issue been raised in a voire dire, that denial of access to a solicitor was justified. Further, even if the judge had found that the denial of access to a solicitor was not justified, it would not necessarily follow that he would also have found that he was not satisfied that the confessions were voluntary. The denial of access to a solicitor for an experienced criminal such as Patrick Molloy would not have amounted to oppression such as to render the confessions involuntary and inadmissible. Again the Crown rely upon the fact that after Molloy had legal representation he continued to allow the police to interview him in the absence of his solicitor and he continued to make confessions.
The Crown challenges the proposition that the number of interviews, the time in custody or the nature of the questioning amounted to oppression which would have rendered these confessions inadmissible.
Finally, with regard to the contradictions and inconsistencies within the various confessions and between the confessions and the known facts, the respondents submit that it is not an uncommon feature of confessions which have been perfectly properly obtained for there to be such contradictions and inconsistencies. In the case of Patrick Molloy’s confessions, they are likely to be due to confused or faulty recollection, especially when it is borne in mind that he had had a good deal to drink at lunch time on the 19th September 1978 and that he had reasons for not telling the whole truth such as loyalty to or fear of his co-defendants, a desire to minimise his own part in the Yew Tree Farm offences and a desire to dissociate himself from the carrying of a weapon. Inconsistencies between the various confessions show changes in Patrick Molloy’s story for which it is not difficult to find motives.
The questions raised by this part of the appeal are academic and hypothetical. The answers to them are unnecessary in view of the fresh evidence based on the ESDA lifts. No application was made at trial for Patrick Molloy’s confessions to be excluded, so there is no evidence on oath tested in cross-examination either from Patrick Molloy or from any interviewing police officer dealing with the points now raised. If the fresh technical evidence and the subsequent conduct of DC Perkins, are taken into account, then it is inconceivable that there could be a finding that the conduct of those police officers involved in the obtaining of the initial confession was, without doubt, honest.
We consider that if this evidence is put to one side, then the trial court would probably have come to the conclusion that these confessions were voluntary. Patrick Molloy did not dispute the records of the interviews. It followed from that that the court would accept that it was he who had asked to see DC Perkins and that following a proper caution he had admitted being present at Yew Tree Farm. We think it inevitable that any evidence by Patrick Molloy of physical ill treatment would have been rejected, in the absence of any objective evidence of injury to him or damage to his denture, or of any complaint to the senior police officers who saw him after the making of Exhibit 54.
Nor do we consider that the length of time in custody or the interviews which preceded those of the Sunday afternoon would have been considered by a court as amounting to oppression for a man of Patrick Molloy’s age and experience of the police and of being in custody. He had been arrested at 8.25 on the Friday morning. He had been interviewed between 1100 and 14.15 that day and again between 1440 and 2200 hours. The next interview with him was at 1800 hours on the Saturday. That had lasted some unspecified time that evening. There had been a further interview at 2300 hours which appears from the record of visits to persons detained in a cell at Wombourne police station, to have been relatively short and to have ceased before midnight,
On the 10th December, there was a 15 minute interview between 1315 and 1330 and a 40 minute interview between 1500 and 1540 at the end of which Patrick Molloy asked to see DC Perkins. The number and duration of these interviews in our view would be unlikely to have resulted in a finding by the trial judge that the admissions which followed shortly thereafter were not voluntary because they had been obtained by oppression.
In concluding this section of our judgment we would wish to make this observation that we have found no evidence that senior members of the Staffordshire Police Force were guilty of any misconduct in relation to their handling of Patrick Molloy and their investigation of the case against him. Nor have we seen any evidence that would link any senior officer of the Staffordshire Constabulary to the device that was probably employed to obtain Patrick Molloy’s initial confessions of being present at Yew Tree Farm. In our view, the members of the Staffordshire Force went to considerable lengths to afford Patrick Molloy the opportunity to retract the confessions he had made and to make complaint about his treatment by interviewing officers. Patrick Molloy did not do so. On the contrary, after he was convicted he wrote two letters, one addressed to DCS Stewart and another dated April 1980 to the Director of Public Prosecution’s office which ended:
“Let me assure you I have not put the blame on the Staffordshire DCs and have no intention of doing so now or at a later date.”
We are aware that in his own handwritten further grounds of appeal in support of his application for leave to appeal dated 13th October 1980 Patrick Molloy included allegations of police brutality including allegations that he had been beaten the night before he made his confession and that he had been threatened with more beatings by a named police officer if he did not provide more evidence to involve Michael Hickey. Patrick Molloy first submitted grounds of appeal in his own hand writing on the 11th December 1979. He submitted further handwritten grounds on the 11th March, 20th March, 26th March, 16th April and 1st May 1980. In none of these documents did Patrick Molloy allege that he had been subjected to physical abuse by the police. In his original grounds he stated “That my statement is not a true account, and is a revenge statement against the Hickeys and Robinson.” We are also aware of the advice given to Patrick Molloy by his junior counsel namely that counsel could not argue those grounds, which involved him, Patrick Molloy departing from the decision he made at trial not to give evidence.
We accept that if the investigation were to be carried out at the present time, the procedures followed by the police would be very different. Patrick Molloy would have been told on arrival at the police station that he was entitled to consult with a solicitor. He would have been reminded of that right at the commencement of each interview. His detention at the police station would have been subject to time limits. The custody officer would have supervised his detention and the record kept would be more comprehensive than the record kept of his detention in the cells in December 1978. His interviews would have been conducted in interview rooms and would have been tape recorded.
It must follow that had the investigation occurred at the present time and had the matters proceeded as they did in December 1978, the statements made by Patrick Molloy would almost certainly be held inadmissible, because the police would have been deliberately disregarding procedures laid down by statute. The tape recording of interviews on Sunday 10th December 1978 would have deterred the police from showing to Patrick Molloy a statement alleged to have been made by Vincent Hickey or would have provided immediate evidence of the deception.
Having made these observations, it has to be remembered that at the time of Patrick Molloy’s trial a further five years were to pass before the coming into force of the Police and Criminal Evidence Act 1984.
We return now to the conversation between DS Harrison and DC Davies and Patrick Molloy in the police car taking Patrick Molloy to Shrewsbury Prison, which is a matter that has caused us concern.
The statement of DS Harrison included in the committal bundle insofar as his evidence relating to the conversation in the car taking Patrick Molloy to Shrewsbury Prison on the 28th of December 1978 read as follows:
“At 2.30 pm on Thursday, 28th December, 1978, in company with DC Davies, I conveyed Patrick Molloy from Wombourne Police Station to HM Prison Shrewsbury. En route to Shrewsbury we spoke to Molloy about matters not connected with his charges, in particular of Tamworth and his previous associates.
When approaching Shrewsbury he said, “You know I’m frightened don’t you. Those Hickeys they’re really bastards they are.” I said, “Why, have you been put under some pressure?” He said, “Yes”. DC Davies said “Who by”, he replied, Joey”.
I said, “When, since you’ve been inside?”, he replied, “No, before”. I said, “There’s nothing to be frightened about, I can’t talk to you about it”, he replied, “Yes, I’ve made two statements. I know they conflict a bit, but I thought some more about how we got to that farm, we went in a green van look like that one in front, but with four wheels (I looked at the front of the vehicle and there was a blue and white Ford Transit travelling in the same direction as ourselves. This was a six-wheeler type) … it was like that. It was sort of dark green. Vinney and Mickey picked me and Jimmy up from the Cali, they took us to the Dog and Partridge, where we got into a light blue Ford Cortina. It wasn’t the same sort as we dropped the meat off in, sort of four door but no back. You know not like an Estate car. I’m pretty sure it was a Ford”.
DC Davies’ committal statement was in identical terms.
A draft statement by DS Harrison has been disclosed since the completion of the first appeal. The draft statement has been edited so as to produce the committal statement. The editing consists of three deletions and one addition. The first deletion is of words “to me” in the sentence “when approaching Shrewsbury he said, “You know I’m frightened don’t you. Those Hickeys they’re really bastards they are”.” The second deletion is of the words “It’s a case of looking after yourself. I hope you have told the truth but” in DS Harrison’s reply to Patrick Molloy “There’s nothing to be frightened about. I can’t talk to you about it”. The deleted words coming immediately after the words “There’s nothing to be frightened about … “. The third deletion is of a question by DC Davies after Molloy was said to have pointed out a blue and white Ford Transit van travelling in the same direction as the Police car. The question was “What colour was it then?” to which Molloy replied “It was sort of dark green”. The words “It was” being the addition.
DS Harrison gave evidence of this conversation to the jury. He also gave evidence about other matters. At the beginning of his evidence he said that he would need to consult his notebook in order to refresh his memory whilst giving evidence and received the Judge’s leave to do so. His evidence of the conversation was in the terms of his committal statement.
The respondents concede that there is evidence of an irregularity here. It is not conceded that it had any bearing on the outcome of the case against Molloy. The respondents went further and agreed that it is a matter for concern that some editing of the draft statement occurred. It suggests that the likely motive for the editing was to remove a possible obstacle in the way of Molloy’s remarks being admitted in evidence. The respondents go on to submit that however reprehensible this editing may have been, the defence of Patrick Molloy at his trial cannot have been prejudiced by it nor can it now render his conviction unsafe.
Counsel for Molloy does not agree. Counsel accepted that Mr Gorman QC at trial had wanted this conversation in for understandable reasons. He suggested that the Prosecution had wanted the conversation in in order to reconcile what otherwise was a glaring inconsistency in the admissions made by Patrick Molloy namely that in the first interview in which he made admissions and in his written statement Exhibit 54 he said that the four of them had met at the Dog and Partridge and had gone from there to Yew Tree Farm. That was a story repeated on the 11th of December 1978 to DCI. Watson and DI Wordley. On the 15th of December 1978 Patrick Molloy was telling DI Wordley that he and James Robinson had been in the California Public House in the middle of the day of the 19th of September and that he could not recall whether he could have gone to the Dog and Partridge public house afterwards. Mr Mansfield suggests that the Prosecution wished to reconcile these two conflicting accounts of both the meeting place and starting point for these offences. Mr Mansfield went on to point to another unsatisfactory feature of this part of the evidence, namely that both DS Harrison and DC Davies say that the conversation occurred at 2.30 pm on that Thursday afternoon, whereas other records show that Patrick Molloy had been taken to Shrewsbury Prison from Wombourne Police Station at 1.50 pm and had then been recalled to Wombourne Police Station where he was interviewed by DC Eccleshall at 2.40 pm and then returned to Shrewsbury Prison at 3.00 pm. If the records at Wombourne Police Station were correct and, in particular, if the evidence of DC Eccleshall as to the time he interviewed Molloy that afternoon was correct then Molloy could not have been in a police car approaching Shrewsbury Prison at 2.30 pm.
In March 1994 DS Harrison, who by that time was DCI. Harrison of the Staffordshire Police, was asked about this discrepancy between his evidence and the records kept at Wombourne Police Station and the evidence of DC Eccleshall. He said “Something is obviously incorrect and it is likely to be a typing error. The time of the commencement of our journey to the Prison from Wombourne is likely to have been 1530 hours. I make this point because my statement uses the time 2.30 pm which is likely to be 3.30 pm. The figure 3 could have been misinterpreted for a figure 2″.
The difficulty with this explanation, as Mr Mansfield pointed out, is that the time 2.30 pm appears also in the committal statement of DC Davies, which was obviously typed on a different typewriter from the committal statement by DS Harrison. Thus two typists have to misread a 3 as a 2, and both DC Davies and DS Harrison have to fail to notice the mistake when checking and signing their committal statements. Moreover when DS Harrison gave evidence he was referring to his notebook so that he had to misread his own handwriting.
Against this background we consider that the “editing” of the draft statement is an irregularity which requires further investigation. It is an indication that at the very least the judge and jury were not told the whole truth about the conversation which occurred in the car. Moreover it means that Prosecuting and Defence Counsel may not have known the true position, namely that during the conversation in the car Patrick Molloy had been given some encouragement to speak.
We intend to draw this aspect of the evidence to the attention of the Director of Public Prosecutions. We do not consider that the matter can be dismissed as simply being “unnecessary” and something which should not have happened.
The next ground relates to the trial judge’s summing-up. It is said that in the course of his summing-up the judge withdrew Patrick Molloy’s primary defence from the jury and prevented their consideration of the question of whether the appellant’s confessions might be untrue. Initially in the perfected grounds of appeal criticism was made of the appellant’s counsel for failing to intervene to correct this aspect of the judge’s summing-up; this despite the fact that leading counsel for Patrick Molloy at his trial, Mr John Gorman, QC and his solicitor, Mr Wiggall, gave evidence at the first appeal at the end of which the appellants’ counsel at that first appeal expressly withdrew any suggestion of a mishandling of Patrick Molloy’s case at his trial by those representing him. At that first appeal Patrick Molloy was not an appellant so that counsels’ concession could not bind the conduct of his present appeal.
Mr Mansfield began his submissions to us on this ground of appeal by saying that one had to be realistic about a case. In Mr Gorman’s final speech to the jury there had been two strands to Patrick Molloy’s defence. The judge had summed-up so as to exclude the first strand and Patrick Molloy’s counsel had not intervened. Mr Mansfield made it clear that he made no criticism of Mr Gorman who, he accepted, was in an extremely difficult position and had had to present an extremely difficult case. Mr Mansfield directed his attack at the summing-up. The judge was wrong, submitted Mr Mansfield, to tell the jury that Mr Gorman had invited them to accept Patrick Molloy’s admissions as true and that there was no issue concerning the presence of Patrick Molloy at Yew Tree Farm.
It is quite correct that in the summing-up from beginning to end the judge told the jury that Mr Gorman on behalf of Patrick Molloy was inviting them to accept Patrick Molloy’s admissions including the written confession, Exhibit 54, as being true:
“Accordingly, Mr Gorman on Molloy’s behalf invited you to find Molloy guilty of simple burglary at Yew Tree Farm, but not guilty of any other offence.”
That passage comes at the outset of the summing-up at page 5B, and it is followed by a number of other passages to the same effect. The judge had prefaced that remark to the jury by pointing out that as far as Patrick Molloy was concerned he had not given evidence and the police evidence of his admissions was unchallenged.
The judge returned to this theme towards the end of his summing-up at page 146 D when he said:
“I have not referred at all, other than in passing, to Molloy, because he has not disputed his presence. He made a statement to the police admitting it, and his counsel has invited you on his behalf to find that those admissions are indeed true and to find him guilty of burglary.”
There can, therefore, be no doubt as to the way in which the judge left the defence of Patrick Molloy to the jury. It was on the basis that there had been no evidence to challenge or contradict the police evidence of the admissions made by Patrick Molloy nor had any reason been advanced why Patrick Molloy should make false admissions about being present at Yew Tree Farm. The jury were told nothing about Patrick Molloy’s assertion to his instructing solicitor that he had made those confessions because he had been made angry and wished to obtain revenge upon Vincent Hickey, for Vincent Hickey saying that he, Patrick Molloy, had been at Yew Tree Farm. Nor, in the absence of any evidence by Patrick Molloy, could the judge have known or the jury have been told about that matter.
It must also be remembered that when James Robinson gave evidence in support of his own alibi during his evidence in chief, he had not mentioned the presence of Patrick Molloy at Carol Bradbury’s flat. He was not cross-examined by Mr Gorman on behalf of Patrick Molloy. In cross-examination by counsel for the Crown, James Robinson had said that Molloy had been with him at the California public house, had returned from there to Carol Bradbury’s flat with him and that he, James Robinson, had then gone to bed with Carol Bradbury remaining there for some three to four hours. James Robinson did say that, as far as he could tell, Patrick Molloy had remained in the flat whilst he, James Robinson was in bed. Carol Bradbury was not called to support James Robinson’s alibi nor was she called on behalf of Patrick Molloy.
The consequence of the evidence that was called was that the jury knew of Patrick Molloy’s alibi notice dated 30th May 1979 which asserted that between 3 pm and about 4.30 pm he had been at 35, Wolston Croft, (the flat of Carol Bradbury) and that between about 4.30 pm and about 5 pm he was on foot in the immediate vicinity of 35, Wolston Croft visiting various local shops and then between about 5 pm and 7 pm had been at the flat again, but had no direct evidence to substantiate the alibi of which notice had been given.
The respondents dispute that there is any validity in this complaint about the summing-up. Even if there were, Molloy could not have been prejudiced nor could his conviction have been rendered unsafe. The judge was required to sum-up the case in accordance with the evidence and in accordance with the way the defendants’ cases had been presented. The reality of the case presented on behalf of Patrick Molloy was that although there was an alibi notice, there was virtually no evidence to support that alibi. Indeed the alibi notice itself demonstrated that James Robinson’s evidence did not support Patrick Molloy’s alibi, in that it showed that James Robinson’s assertion that as far as he was aware Patrick Molloy had not left the flat whilst he was in bed was of no value. In his alibi notice Patrick Molloy has asserted that he had left the flat during that period.
Although counsel had reminded the jury of that alibi notice and James Robinson’s evidence, counsel had not invited the jury to treat the confessions made by Patrick Molloy and, in particular, the statement Exhibit 54 as being false. Had counsel done so, he would have destroyed the only basis on which Patrick Molloy could have escaped a conviction for murder. That was a point well understood by Patrick Molloy himself as his letter of the 30th September 1979 to his solicitor and his signed instructions of the 11th October 1979 demonstrate.
The remainder of defence counsel’s speech proceeded on the assumption that the jury would find that Patrick Molloy was at Yew Tree Farm and was devoted to persuading the jury to accept his account as set out in the written statement Exhibit 54 and so find him guilty of simple burglary at best or aggravated burglary and manslaughter at worst. The prosecution witnesses had been cross-examined to draw attention to matters which could be used as confirmation of the truth of Patrick Molloy’s account in Exhibit 54, for example by drawing attention to the stacking of the drawers shown in photograph ‘O’ of Exhibit 1, as providing some confirmation of the claim that Patrick Molloy had been upstairs when the boy had been shot.
It would have been very damaging to if not totally destructive of the case advanced on Patrick Molloy’s behalf at his trial had the judge summed-up the case in any way other than the way in which he did. If the judge had presented Patrick Molloy’s case to the jury as being “my admissions are all untrue. I was never at Yew Tree Farm and I rely on the evidence of James Robinson that I was at Carol Bradbury’s flat at the relevant time. If however you find I was at Yew Tree Farm, I ask you to accept the account of my role in that burglary given in Exhibit 54,” the first part of such a defence had no chance of success because there had been no challenge to the police evidence, no suggestion as to why the admissions were false and there was other evidence, namely that of Helen Johnston and the three prison officers which confirmed that the admissions were true. Further the jury would not have been unaffected by the absence of the obvious alibi witnesses, namely Patrick Molloy himself and Carol Bradbury. We accept the respondents’ submission that in all the circumstances there could have been no prospect whatever of the jury accepting that Patrick Molloy’s confessions of participation were other than true; the only result of the judge summing-up in the way suggested would have been to increase the chances that the jury would reject the exculpatory parts of his confession and convict him of murder. At the end of the summing-up counsel for Patrick Molloy specifically asked that the jury could have Exhibits 53 and 54, which in our view underlines the nature of the case run on Patrick Molloy’s behalf, quite properly on his instructions at his trial, and confirms that the summing-up by the judge accurately and fairly reflected this defence.
Conclusions on the Appeal of Patrick Molloy
(1) We accept the evidence of the expert witnesses. Consequently we are satisfied that Patrick Molloy’s confessions made between 1540 and 1620 on the 10th December 1978 were obtained by deceit. That deceit tainted his later confessions and made all his confessions inadmissible. Without those confessions he would not have been prosecuted for the Yew Tree Farm offences.
(2) There is no evidence of deceit being practised on Molloy save that of showing him a forged document purporting to be a statement by Vincent Hickey implicating him, Patrick Molloy, in the Yew Tree Farm offences.
(3) There is no sufficient basis for concluding that senior officers of the Staffordshire Police Force were involved in this deceit.
(4) There is no basis for concluding that, apart from this deceit, Patrick Molloy was subjected to oppression or physical violence by the police.
(5) The judge’s summing-up of Patrick Molloy’s case cannot be criticised. It reflected fairly the case for Patrick Molloy as skilfully presented by his counsel.
THE EFFECT ON THE CONVICTIONS OF
JAMES ROBINSON, VINCENT HICKEY AND MICHAEL HICKEY
OF PATRICK MOLLOY’S CONFESSIONS
BEING INADMISSIBLE
Patrick Molloy’s confessions stated that the other three appellants were with him at Yew Tree Farm and gave accounts, not always consistent, of what part each of the other three appellants played in the offences. In particular, Patrick Molloy at one stage appeared to be saying that James Robinson had shot Carl Bridgewater, albeit that the gun had been discharged accidentally, and at another stage that it was Michael Hickey who was holding the gun when he, Patrick Molloy, entered the living room after the boy had been shot. Neither the contents of these confessions nor the fact that Patrick Molloy had made them and that they had been accurately recorded was challenged by Patrick Molloy’s counsel and Patrick Molloy did not give evidence. His case was effectively that his confessions were true and exonerated him from the crime of murder. Prosecution witnesses were cross-examined by his counsel to highlight, where it was so, that their evidence supported some detail in Patrick Molloy’s confession statements.
Patrick Molloy’s written statement had been shown to all three when they were being interviewed, for them to comment upon. The details of his confessions had been used as the basis of questions put to all three when they were being interviewed. None of them could suggest any reason why Patrick Molloy should implicate them falsely in these offences. This was a particularly powerful point in the case of James Robinson who was a close friend and partner in crime of Patrick Molloy. All three were told that Patrick Molloy had been charged with murder when that charge was preferred against him and again given the opportunity to comment. Inevitably, the contents of Patrick Molloy’s confessions formed the basis of questions put to each of these appellants in cross-examination when they gave evidence.
The contents of Patrick Molloy’s confessions and the fact that his case did not involve challenging the police evidence of them was a thread which ran through the judge’s summing-up, although accompanied, very properly, by warnings that these confessions were not evidence against any defendant other than Patrick Molloy.
Had the inadmissibility of Patrick Molloy’s confessions been known prior to trial then there would have been these consequences:
i. Patrick Molloy would not have been on trial and his confessions would not have been admitted in evidence.
ii. Prosecution witnesses would not have been cross-examined to show that details in Patrick Molloy’s confessions were true.
iii. The police evidence of interviews with the other three defendants would have had to have been edited to remove all reference to Patrick Molloy’s confessions.
iv. The jury would have had no detailed picture involving the other three defendants of what had occurred in Yew Tree Farm at the time of and immediately after the shooting. PRIVATE
v. These three appellants could not have been asked the question to which they had no answer, namely why Patrick Molloy should implicate them in these offences.
vi. The defence would have had evidence of a deceit practised by officers of the Number 4 Regional Crime Squad which evidence could have been used to undermine evidence of other police officers such as that relating to the alleged fingerprint confession by Michael Hickey.
vii. The jury would not have taken with them when they retired to consider their verdicts the original of Exhibit 54.
The law applicable is to be found in the case of Paris, Abdullahi and Miller (1993) 97 Cr App R 99, that although strict legal logic would say that the alleged confession of one defendant in the absence of another defendant is not evidence against that other defendant, therefore the fact that the alleged confession turns out to be inadmissible ought not to have prejudiced the other defendant, particularly where the judge has given proper directions, such strict legal logic is not sustainable. This is because “whilst a defendant may have to accept the admission of evidence relevant only to another accused where they are jointly tried, he should not have to suffer the admission of prejudicial evidence in a trial which is not admissible against anyone.” See per Lord Taylor LCJ p 107.
Mr Fitzgerald for Michael Hickey stated the principle in these terms:
“The principle of law, therefore, is that a verdict is rendered unsafe by the admission of a co-defendant’s prejudicial confession implicating the appellant, when that confession was, in fact, inadmissible. The only exceptions to this principle might be, either where it could be shown that the jury were not in fact affected by the wrongful admission in evidence of the confession, or, where the other evidence in the case was so overwhelming that the safety of the conviction was beyond doubt.”
In our judgment a confession by one defendant which turns out to have been inadmissible as evidence can only affect the conviction of a co-defendant if the confession was prejudicial to that co-defendant that is to say it implicated that co-defendant in some way in the commission of the offence charged. With regard to the two possible exceptions suggested by Mr Fitzgerald, we find difficulty in envisaging circumstances in which it could be shown that the jury had not in fact been affected by the wrongful admission in evidence of a prejudicial confession of a co-defendant. With regard to the other suggested exception our view is that such an exception probably exists although a firm decision on the point must await a future case. The
question on appeal now is always whether the appellant’s conviction is safe. If, despite the admission into evidence of an improperly obtained and prejudicial confession by a co-defendant, this Court on a consideration of all the evidence and circumstances of the case thinks that the conviction of the appellant is safe, then the Court is obliged under Section 2(1)(b) of the Criminal Appeal Act, 1968 to dismiss the appeal. We anticipate that cases in which this exceptional position would be reached will be rare.
We are satisfied that the confessions of Patrick Molloy were inadmissible and that they must and did have a seriously prejudicial effect on the cases of the three appellants who stood trial with him. Whether there are the exceptions to the general principle stated by Lord Taylor, LCJ in Paris, Abdullahi and Miller which Mr Fitzgerald was prepared to concede can await future decisions of this Court. This is not a case in which either of those exceptions could apply. On this ground alone the appeals of James Robinson, Vincent Hickey and Michael Hickey must be allowed, because the deceit practised on Patrick Molloy to obtain from him confessions has, for the reasons we have endeavoured to state, rendered their convictions on Counts 1 and 2 in the indictment unsafe.
The direction on Alibis
Each of the appellants, whose defence at trial was that he was elsewhere at the time of the raid on Yew Tree Farm, namely James Robinson, Vincent Hickey and Michael Hickey, claims in his grounds of appeal that the judge misdirected the jury in relation to the alibi evidence. The criticism is a relatively narrow one. It is said, and we cite for convenience Ground 3 of Robinson’s grounds, that the directions “never fairly allow for the possibility of a deliberately false alibi, not advanced in panic, being consistent with innocence”. What this boils down to, and we trust we do not oversimplify the complaint, is that the judge misdirected the jury in that he failed to alert them to the fact that even if they were sure a particular alibi was not just false but deliberately false before regarding that finding as one which supported the prosecution’s case, they had also to be sure that the deliberately false alibi had not been put forward to bolster a genuine claim of innocence. Even if this criticism of the judge’s directions can be brought home, it has been argued on behalf of the respondents that the omission can have no bearing upon the safety of the convictions in the circumstances of this case, because, so it is said, to this day, the Hickeys have maintained their claims that at the material time they were not at Yew Tree Farm and that they were at the Bristol Road garage. Similarly in the case of Robinson not once has it been suggested by him or on his behalf during these past 18 years that his claims were other than true — that he was not at Yew Tree Farm and that he was at home in bed with Carol Bradbury. Thus, although the judge is criticised for not alerting the jury to the possibility that a deliberately false alibi can be advanced by a perfectly innocent defendant, some eighteen years after these appellants were convicted, it is not suggested that such was the position here. Although we have some sympathy with this submission we do not accept that it is an answer to the criticism (should the criticism be sound) particularly in the case of Robinson, whose claim to have been ‘elsewhere’ has not been enhanced by any of the evidential developments which have occurred since 1979.
How did the judge direct the jury? At p 6B he told the jury that although the alibi issue had been raised by the defendants, it was for the prosecution to prove, and we quote, “that the alibi in each case was false”. At p 6H on the topic of “lies” generally he said:
“Sometimes it happens that evidence called for the defence, including the evidence of the defendants themselves, helps the prosecution. For example, if an accused gives evidence and you take the view that he is lying, it may assist the prosecution to indicate to you where the truth lies.”
At pp 31E-32G, having summarised the evidence of the Hickeys and Robinson as to their respective whereabouts on the afternoon of Tuesday the 19th September 1978, the judge gave his first and fullest direction on the alibis and the significance of any conclusion that an alibi was false. He said this:
“These alibis are clearly of vital importance. They are the defence of those 3 defendants. If in the case of any of those 3 defendants who say they were elsewhere you think the alibi is true you will of course acquit that defendant of all the charges against him. If you think the alibi may be true, it follows that you are not sure that that defendant was at Yew Tree Farm on the afternoon that Carl died, and it follows that the prosecution would not have convinced you so as to make you sure that that defendant is guilty. Again, you will acquit that defendant of all the charges against him.
But what if you decide that the alibi given by one or other of those defendants is false? You might have to consider the reason for this falsity. No doubt there can be cases and are cases in which a defendant puts forward a false alibi for some reason such as genuine mistake, or the fact that when he is questioned by the police he puts forward something out of a panic without thinking properly, or for some other reason. You will have to consider that matter. If the reason for a false alibi is, for example, a genuine lack of memory or mistake it must not be held against the accused in any way. You should consider those and any other reasons that you might think of. But at any rate, in relation to the alibis finally put forward to the police and repeated in the witness box on oath by each of those three defendants, Vincent, Michael and Robinson, you may decide that there is really no room for mistake, or something said in panic. If you decide that those alibis or any of them are false, and if you decide in any of the cases that the alibi they have sworn to is deliberately false you should ask yourselves why. One obvious reason which is suggested by the prosecution is that a deliberately false alibi and lies told to support it may have been given and supported by lies to conceal the fact that they were truly at Yew Tree Farm on that afternoon, and if you find a defendant has given a false alibi, and you are driven to the conclusion that the only reason for that being so is to conceal the fact he was at Yew Tree Farm that afternoon, the falseness of that alibi, that is to say, the lies told by the defendant in putting forward that alibi, may itself support the evidence called by the prosecution so as to help the prosecution to prove that that defendant was at the farm and is therefore guilty at least of the charge of burglary.”
In the context of the case concerning Vincent Hickey at pp 70H-71B the judge said this:
“Vincent Hickey’s defence is an alibi. The Prosecution say that it is clearly a false alibi concocted by Vincent, and that the undisputed evidence of what Vincent from time to time told the police shows that the alibi he has put forward on oath is a deliberate lie. In the context of this case it may well be you will find it difficult to imagine why he should concoct a false alibi and tell lies about it in the witness box for any reason other than to avoid conviction for being present and taking part in an offence at Yew Tree Farm.”
Having summarised all but the alibi evidence relating to the Hickeys the judge began to deal with that evidence at p 104F. At p 103G he again directed the jury upon their approach if they concluded that one or other or both of the Hickeys “had deliberately lied about their whereabouts on the afternoon of the 19th September”. He said this:
“…if you reject the alibis and take the view that there is no room for them to have been put forward by mistake or lack of memory or any other reason like that, in other words if you decide that Vincent and Michael or one or other of them have deliberately lied about their whereabouts on the afternoon of the 19th September then you may and should ask why. It may be difficult in the context of this case to think of any reason other than that they wished to conceal the fact that they were involved at Yew Tree Farm on that afternoon.”
Later the judge returned to the topic of false alibis. At p 115B he said:
“I must make it clear to you since I have made many observations to you about the fact that if you are satisfied that these men are telling lies about the alibi, that would be a pointer against them but it would never be sufficient for the prosecution to prove a case merely on the giving of a false alibi.”
The judge then at p 115C-E continued:
“But if you find Michael and Vincent had deliberately lied about the alibi and could rule out therefore the possibility that that has arisen through some mistake of memory or some other reason, then the fact of that lie and the fact that it points to them having concealed their true whereabouts can be used to support the direct evidence which the Prosecution have adduced to show those men were at Yew Tree Farm.
It is evidence which supports other evidence which ties in as one of the pieces in the jigsaw puzzle and which can be used as supporting evidence.”
The judge then moved on to deal with the case concerning Robinson. At p 116B-C he said:
“His defence, like that of Vincent and Michael is an alibi. Let there be no misunderstanding. There is nothing dirty about the word. It is the best defence in the world if you can say: I was not there; I was somewhere else. The question you have to consider is whether it is a true one, and that means in the context of the criminal case whether you are sure that the Prosecution convinces you it is false.”
Finally, the judge gave another direction upon the evidential significance of a false alibi. At p 118-119C he said this:
“If you think that Robinson’s alibi is true, he is not guilty of everything. If you think his alibi may be true, that means that the Prosecution have not convinced you so that you are sure that he was at Yew Tree Farm, and again, the same result follows, not guilty. If you are sure the alibi is false, then in the same way as I have directed you fully as regards to Vincent and Michael Hickey, you may take it into account. If you are sure that its falsity is the result of a deliberate lie and not a mistake on Robinson’s part you may take it as something that supports the other evidence called by the Prosecution.”
As we have already observed the criticism made of the judge’s directions is a narrow one. More than once he told the jury that were they to conclude that a particular alibi was deliberately false they should ask themselves ‘why?’. (pp 32D, 103H). At p 32E-F he emphasised the need for a further conclusion before the fact of a defendant’s deliberately false alibi could be used in support of other prosecution evidence against that defendant. That further conclusion was that the only reason for the deliberately false alibi was to conceal the fact that the defendant was at Yew Tree Farm that afternoon. Having given that direction at p 32, at p 71, dealing with Vincent Hickey, the judge anticipated that the jury “might well find it difficult to imagine why he should concoct a false alibi other than to avoid conviction for being present at and taking part in an offence at Yew Tree Farm”. At p103 the judge again repeats the need for the jury to ask themselves “why?” if they concluded that either or both of the Hickeys had deliberately lied about their whereabouts in the afternoon of the 19th September. He went on to repeat that it may be difficult in the context of the case to think of any reason other than they wished to conceal the fact of their presence at Yew Tree Farm. At p 115 the judge reminded the jury of what he had said at p 32 namely that if in the case of either Hickey they concluded the alibi was false, before that conclusion could support the prosecution case the jury must have ruled out “the possibility that [the false alibi] had arisen through some mistake of memory or some other reason”. Finally, with specific reference to Robinson, the judge repeated the direction that the prosecution had to convince them the alibi was false. Three pages later he returned to the question of the significance of a false alibi. “If you are sure the alibi is false then in the same way as I have directed you fully as regard to [the Hickeys] you may take it into account”. He then added that if they were sure the falsity resulted from a deliberate lie (rather than from a mistake) “you may take it as something that supports other evidence called by the prosecution”.
Having analysed these directions we are entirely satisfied that the jury must have understood first, that proof that a defendant was not in location A is not proof that he was in location B; second, that proof of falsity does not automatically mean that the falsity was deliberate — there may be an innocent explanation such as mistake and third, proof of deliberate falsity should not automatically be equated with guilt; the jury should next ask themselves” ‘why?” and they should be sure, before using the deliberately false alibi as a fact which supports the prosecution case, that the only explanation for it having been given was to conceal the fact of the defendant’s presence at Yew Tree Farm.
It is perfectly true that the passage at p119, if taken in isolation, appears to state that deliberate falsity alone is sufficient to qualify the false alibi as something which supports the prosecution case. Having regard to all the judge had said in the earlier passages and to the clear reference, a line or two earlier, to the fact that he was intending to repeat in the context of Robinson’s case what he had already said in the context of the Hickeys, we do not believe that the jury was or may have been misled by that passage. Thus it is that the sole omission from these directions consisted of the jury not being alerted to the fact that one answer to the question “why the deliberately false alibi?” can sometimes be “because the defendant is innocent and has misguidedly invented an alibi to bolster a genuine defence”.
Although in the relatively recent past the importance of directing a jury upon the evidential significance of certain lies has repeatedly been emphasised, in the late 1970′s the danger of a jury jumping to the conclusion that a false alibi was conclusively inconsistent with innocence was well recognised and had been spelt-out in the landmark case of Turnbull (1976) 63 Cr App R 132 at 139:
“Care should be taken by the judge when directing the jury about the fact they have rejected an alibi. False alibis might be put forward for many reasons: an accused for example who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence will not be enough. Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witness can. It is only when the jury is satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward can fabrication provide any support for identification evidence. The jury should be reminded that proving that the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was.”
The importance of giving a direction which alerts the jury to the danger of jumping to a conclusion adverse to the defendant if false alibi evidence has been given has been emphasised repeatedly since 1976. A case decided prior to the trial of these appellants was Keane (1977) 65 Cr App R 247. Both Turnbull and Keane were referred to in the then current (40th) edition of Archbold at para 1349. The passage from Turnbull which we have cited was set out. Recent cases to which our attention was drawn are Pemberton (1994) 99 Cr App R 228 and Lesley (1996) 1 Cr App R 39. In Lesley the court stated that what was called ‘the failed alibi direction’ should routinely be given although whether a failure to give it rendered a conviction unsafe would depend upon the facts of the particular case and the strength of the evidence.
Before us counsel for the respondent argued that the judge’s directions were sufficient particularly having regard to the case of Burge and Pegg [1996] 1 Cr App R 163 in which another division of this court identified the circumstances in which what has come to be termed “a Lucas direction” is usually required. At p173 Kennedy LJ said:
“There are four such circumstances but they may overlap:
1. Where the defence relies on an alibi.
2. Where the judge considers it desirable or necessary to suggest that the jury should look for support or corroboration of one piece of evidence from other evidence in the case, and amongst that other evidence draws attention to lies told, or allegedly told, by the defendant.
3. Where the prosecution seek to show that something said, either in or out of the court, in relation to a separate and distinct issue was a lie, and rely on that lie as evidence of guilt in relation to the charge which is sought to be proved.
4. Where although the prosecution have not adopted the approach to which we have just referred, the judge reasonably envisages that there is a real danger that the jury may do so.
If a “Lucas” direction is given where there is no need for such a direction (as in the normal case where there is a straight conflict of evidence), it will add complexity and do more harm than good. Therefore, in our judgment, a judge would be wise always, before speeches and summing-up in circumstance number four, and perhaps also in other circumstances, to consider with counsel whether, in the instant case, such a direction is in fact required, and, if so, how it should be formulated. If the matter is dealt with in that way, the court will be very slow to interfere with the exercise of the judge’s discretion. Further, the judge should, of course, be assisted by counsel in identifying cases where a direction is called for. In particular, this court is unlikely to be persuaded, in cases allegedly falling under number four above, that there was a real danger that the jury would treat a particular lie as evidence of guilt if defence counsel at the trial has not alerted the judge to that danger and asked him to consider whether a direction should be given to meet it. The direction should, if given, so far as possible, be tailored to the circumstances of the case, but it will normally be sufficient if it makes the two basic points:
1. That the lie must be admitted or proved beyond reasonable doubt, and;
2. That the mere fact that the defendant lied is not in itself evidence of guilt since defendants may lie for innocent reasons, so only if the jury is sure that the defendant did not lie for an innocent reason can a lie support the prosecution case.”
It was argued that if we were satisfied that those two basic points had been reflected in the judge’s directions the appellants’ criticism is groundless. We cannot accept that submission. Burge and Pegg was not an alibi case. Time and again since 1976 the Turnbull direction has been applied by this Court. The case of Lesley was decided less than six months prior to the judgment in Burge and Pegg. In our judgment, too, the “failed alibi” direction should routinely be given and its purpose should be to alert the jury to the three traps which confront them once they have concluded that alibi evidence is false. The traps to which the jury’s attention must be drawn are these: first, that proof that a defendant was not in location A is not proof that he was in location B; second, that proof of falsity does not automatically mean the falsity was deliberate — there may be an innocent explanation such as mistake; and third, that proof of deliberate falsity must not automatically be equated with guilt because an innocent person may deliberately concoct a false alibi to bolster a genuine defence.
It follows in our judgment that the failure to draw the jury’s attention to this third element would now be considered to be a misdirection. That of itself does not render the conviction unsafe. Whether the conviction in consequence is unsafe will depend, in the case of each appellant, upon the detail and strength of the case against him. That proposition is well illustrated by the facts in Lesley. The defendant was convicted of murder and wounding with intent. It was alleged at his trial that he had shot two people. Two Crown witnesses had identified him as the gunman and his fingerprint was found on a beer bottle recovered from the vicinity of where the killing had occurred. An out-of-time alibi notice was served on the prosecution. The judge’s directions to the jury on the alibi did not include the failed alibi direction — the judge did not include any passage to the effect that an alibi is sometimes invented to bolster a true defence. That omission was held to be a misdirection. The court said this (p.50):
“If the jury conclude that the defendant had been present at the premises where the shooting took place on the night in question they would obviously regard the alibi notice that they had been told of as false. That would not, as the judge reminded them, make this defendant the gunman. But the risk identified in Broadhurst that the jury might take his efforts to hide that he had been there that night as evidence of guilt, as the Crown had inferentially invited them to, should have been specifically addressed by the judge. The judge directed them as to the notice of alibi…. That direction started conventionally with the direction that the prosecution had to disprove it. But the judge conspicuously did not add any passage to the effect that an alibi is sometimes invented to bolster a true defence as the Judicial Studies Board Specimen Direction provides. We think that he should have done so and it was a misdirection not to do so…. The failed alibi direction is short and simple. It should routinely be given. In our judgment a failure to give such a direction does not automatically render the conviction unsafe. All depends on the facts of each case and the strength of the evidence. But here where the chief prosecution witness was not in all respects satisfactory and was one whose account had at least, in part, been doubted by the jury (see the acquittal of the second defendant) we are unable to be confident that the failure to give the standard direction made no difference. There were real difficulties in the Crown case.”
The strength of the case against each of these appellants at trial has unquestionably diminished over the succeeding years for reasons which are independent of the recent developments relating to the origins of Exhibit 54. What matters for this purpose is the strength of the respective cases against the appellants at the time of trial. Assessing that in detail today would certainly be a hollow exercise and in our judgment it is unnecessary to do so. The strongest case was against Vincent Hickey. He made what, on their face, were damaging admissions. Michael Hickey on the other hand made none. The weakest case was against him. The high-water mark of it was “the prisoner evidence”. No identification evidence touched Michael Hickey.
His alibi was the same as Vincent’s. It follows that if the direction was appropriate in the case of Michael it should and would have had to be given in the case of Vincent. The strength of the case against James Robinson lay somewhere in between. There was in his case identification evidence and ‘prisoner evidence’ but each, even in 1979, presented the Crown with certain problems.
Robinson made no admissions but it was the Crown’s case, that he had more than once been on the brink of admitting his presence. His own evidence of alibi was unsupported by evidence which ordinarily would have been called, had the alibi been true, and the judge told the jury that Carol Bradbury’s absence from the witness box was a factor they could take into account.
We have come to the conclusion that in the cases of both Michael Hickey and James Robinson the true state and strength of the evidence as against each of them warranted the full direction: the jury should have been alerted to the possibility that one explanation for a deliberately false alibi is that it has been put forward misguidedly by an innocent person in order to bolster a genuine defence. A jury’s conclusion that a defendant has put forward a lying alibi is likely to have a devastating effect upon their view of his denial of guilt.
Lord Devlin expressed the danger in these terms over 30 years ago in the case of Broadhurst v R [1964] AC 441 at 457:
“There is a natural tendency for a jury to think that if an accused is lying it must be because he is guilty and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so.”
In the case of each of the defendants having regard to the manner in which and the length of time over which their final alibis emerged, it is not overstating the position to say that these alibis must have reeked of deliberate falsity. There was in truth only one possible innocent explanation for them, namely, these invented alibis were being advanced to bolster a truthful denial of guilt. The importance of alerting the jury to that possibility is paramount in cases where the prosecution evidence was of the nature of that relied upon here — certainly as against Michael Hickey and James Robinson.
THE APPEAL OF JAMES ROBINSON
PRELIMINARY OBSERVATIONS:
Impact of Exhibit 54
In the case of James Robinson the court was confronted with well in excess of 50 grounds of appeal. A number of them were not pursued at all, others were argued but abandoned during the course of the hearing. Mr O’Connor assisted us at the beginning of his reply by identifying those grounds which fell into one or other of those two categories. They are Grounds 1, 4, 5, 11, 17A, 18, 21, 24, 27, 28, 30, 35, 44B, 45A, 47 and 50.
As we have already stated and explained, the fact that Molloy’s inadmissible confession was before the jury who were also trying James Robinson was conceded, and correctly conceded, by the Crown to be a sufficient ground for regarding as unsafe James Robinson’s convictions in relation to the events at Yew Tree Farm. James Robinson’s claim that by virtue of Molloy’s inadmissible confession being before the jury his case at trial was improperly prejudiced is considerably stronger than that of Vincent and Michael Hickey. At an early stage in the summing up the judge observed (p.20G): “At that [sic] time that we are concerned with James Robinson and Patrick Molloy appear to have been almost inseparable companions, constantly together”. Later on the judge said (p.52C):
“I need not remind you of the very close association between the two Hickeys, nor of the very close association between Robinson and Molloy who at the relevant time were living under the same roof and apparently very constant companions.”
Given Molloy’s stance at the trial the jury’s task was not straightforward. Both Robinson and Molloy had served alibi notices upon the prosecution. The notices corresponded substantially in their detail. Those notices were read to the jury during the Crown’s opening. In the notice served on behalf of Robinson, Molloy is named as a person who can support his alibi. At trial, Robinson repeated on oath the claim that he was elsewhere, although for obvious reasons his claim that Molloy was actually in his company throughout the afternoon of 11th September was not pressed in express terms and, accordingly, it was unnecessary for Molloy’s counsel to challenge Robinson’s evidence. But the contrast between their respective cases remained stark. In spite of his alibi notice, which, we repeat, had been read to the jury, for practical purposes Molloy’s defence at trial was not that he was elsewhere with Robinson but was his account of the events at Yew Tree Farm contained in Exhibit 54 — that account involved his presence at Yew Tree Farm with the Hickeys and with Robinson.
It is beyond argument that had the true status of Exhibit 54 been discovered before the trial Molloy would not have been in the dock — there was no other evidence against him. It is equally clear that had the true status of Exhibit 54 been uncovered during the trial the jury would have been discharged and any further proceedings against the remaining defendants would have been before a fresh jury.
The argument (anticipated in Ground 47) that Robinson’s case at trial was improperly prejudiced because of impropriety on the part of counsel in the presentation of Molloy’s case has very properly not been advanced before this court. We entertain no doubt that Molloy’s case at trial, founded as it was upon his written instructions to counsel, (now fully disclosed both to the court and to the representatives of the other appellants), was presented with complete propriety. However, the combined effect of the then admissible Exhibit 54, the nature of Molloy’s and Robinson’s respective defences and the manner in which it was necessary to conduct Molloy’s defence, undoubtedly required a ‘safety first’ approach to Exhibit 54 on the part of both the prosecution and the judge. By that we mean that it was necessary not only for the jury to understand that Exhibit 54 was not evidence against Robinson but it was equally important that nothing should have been said or done during the trial which the jury might have regarded as an acceptable measure of erosion of the strict legal embargo upon the use of Exhibit 54 in the jury’s consideration of the case both for and against each, or any one, of the other defendants.
Whatever uncertainty may have existed at the start of the trial and during a good deal of the prosecution’s evidence as to the nature of the defences and the manner in which they were to be deployed, by the end of Robinson’s examination in chief the need for sensitive handling of Exhibit 54 will have been obvious. As will be seen later, various grounds of appeal advanced on behalf of Robinson are based upon the suggested misuse of Exhibit 54 in the course of the Crown’s cross-examination of Robinson and upon the suggested ‘flaunting’ (as it was put) of Exhibit 54 during the course of the summing up”.
Police Interviews
Finally, we must say something about Robinson’s police interviews which to some extent were edited, primarily to delete the Chapel Farm material, before they were recounted to the jury. Nonetheless, Grounds 21 and 22 of Robinson’s grounds of appeal are in these terms:
“21. It is apparent from the face of the police statements and the Appellant’s detention records that his answers were obtained in circumstances of oppression arising out of the length of his detention, the length and number of times a day of his interviews and the nature of his questioning. They were therefore inadmissible in evidence.
22. The learned trial judge wrongly admitted into evidence much questioning of the Appellant during his police interviews which whilst not improper in terms of permissible police practice constituted inadmissible evidence.”
Various examples of the complaint in Ground 22 are then cited.
No objection was taken at trial to the admissibility of any of the interview evidence: Counsel did not seek to challenge its admissibility either on the general ground of oppression or on particular grounds relating to particular passages. Nor, we should add, was one word of the police evidence concerning Robinson challenged at the trial. During the evening of Sunday 10th December, Robinson was shown Molloy’s statement under caution — Exhibit 54. No complaint is or could be made about that. Having eventually read Exhibit 54 Robinson described it variously as “not being worth the paper it was written on”, “fucking rubbish” and “a fairy story”. Thereafter, he persistently rejected the account of events contained in Exhibit 54. The police were nevertheless entitled to ask and did ask, more than once, whether Robinson was able to explain why Molloy, his friend, should have falsely implicated him. Robinson told the police that he had no explanation. We say at once that there are a number of passages in Robinson’s interviews which each one of us would have excluded had we been invited to do so by defending counsel. Two obvious examples are these: After Robinson had rejected the contents of Exhibit 54 as untrue DCI Jarvis said:
“You know its true.
A: It’s not.
Q: I can tell by your eyes you’re telling lies” [D7B/40B]
The second example is this: The following day when being questioned about other matters Robinson said:
“Do you know they are trying to pin the murder on me?”
DCI Taylor said: “Yes but other officers are questioning you about that”.
Robinson: “They think I’ve done it”.
D/S Hornby: “Well so do I and that is from our information” [D8/7B].
It is perfectly true that on occasions it is the duty of the judge when interview material of the nature we are now considering is led (or is about to be led) before the jury, to inquire as to its relevance. That duty must rarely arise when defendants are represented, as they were in this trial, by very experienced leading counsel. If in a trial such as this Counsel have not objected then the judge is entitled to conclude that they have not done so for good reason whether tactical or otherwise. During the course of the hearing Mr O’Connor abandoned his pursuit of Ground 21. He informed us that the explanation for the absence of an objection at trial on the ground of ‘oppression’may well have been that the defence wished to demonstrate that from first to last Robinson had maintained his denials, notwithstanding (for example) both the persistence of the police in their suggestion that he had been present at Yew Tree Farm and the fact that on occasions he had broken down and become very emotional. Mr O’Connor informed us that in those circumstances he had decided it would be inappropriate for him, some eighteen years later, to embark upon an argument that this material should never have been before the jury. That is an approach which we do not criticise. The rationale of the defence approach at trial to these interviews seems to us to emerge very clearly from answers given by the appellant in cross-examination. One passage is cited later in the judgment and is to be found at Day 18A pp 48G-49A. It is unnecessary to say more about Ground 21.
The merits of Ground 22 have to be assessed in the light of the appellant’s stance on Ground 21. The explanation for not pursuing the general issue of admissibility is capable of applying to the absence of any objection to the admissibility of particular passages. Ground 22 in effect complains that very many passages in the interviews consisted of statements by the police as to the state of the evidence and their resultant belief in Robinson’s guilt. In our judgment the only conceivable inference to be drawn from the fact that such passages were laid before the jury is that the defence for the reason we have already stated wished the jury to have the full picture of these interviews. There is no substance in the complaint identified in Ground 22. We should make it clear that we consider later in this judgment the admissibility of the group of interview passages in which the police informed Robinson of Carol Bradbury’s recollection as to various events on Tuesday 19th September.
Judge’s observations upon police interviews
We turn now to Ground 23. This is a complaint about observations concerning the interviews which were made by the learned judge during the summing up. It was the Crown’s case, founded upon these unchallenged interviews, that although Robinson never made any admissions in the interviews he had on occasions very nearly admitted his presence at Yew Tree Farm.
The judge reminded the jury of this aspect of the evidence in these terms: (pp 120B-122A):
“The prosecution suggest that through his interviews with the police although Robinson made no direct admission of being at Yew Tree Farm he went to the very brink of admitting he had been there. There was the dramatic occasion in the interview I have already reminded you of when on his knees he said, “God help me, and if I have done this terrible thing, help me to remember. At one stage Detective Constable Crotty told you that he referred to Molloy’s statement, which named Robinson, and according to Detective Constable Crotty what happened in that interview was this. He said that he said to Robinson, “I suggest that if you broke in, one of the other three had the gun. You broke in, didn’t you Jim? Robinson remained silent, grabbed his chest, looked down, but made no reply. He then asked for a jug of water, which he drank.
The other officer present then said to Robinson, “Jim, it’s more than a coincidence that you have been named by two persons who admit being at Yew Tree Farm.
“Both Vinny and Molloy have been interviewed separately; both name you. The truth has got to come”.
“The police officer says that Robinson then replied, “If I admit it was me, it’s 30 years. I’d tell you if I’d done it. I’d get it behind me. Would you admit it if you’d done it and due for 30 ?”.
“Then Crotty said the other officer said, “Would you ?”
“Robinson said, “No, for God’s sake”. Robinson in cross examination said that he didn’t remember that part of the interview with the police, but he did not deny that it has been accurately stated in evidence. There was another passage in the interviews which the Prosecution point to as being one of those when Robinson got pretty near to making an admission, and that is 752, when Detective Constable Massey said — I’m sorry, it is another part of the interview. It was Monday the 11th of December. There was evidence that Robinson during interview became distressed (1193) and he began to cry and said “Leave me alone. If I have done this thing and had a mental block, leave me alone a bit and I’ll see if I can remember that day”, and that was after the officers had suggested to him that he has been there and done this terrible thing, and that had resulted in him blotting it out from his mind.
So the Prosecution invite you to say that without making any direct admissions Robinson in fact from such passages in particular as I have just referred you to got to the brink of saying that he had been there.”
One issue for the jury to consider at the trial was therefore whether the prosecution had made them sure that an inference adverse to Robinson’s case could be drawn from his answers and demeanour in interview. The focus of the complaint in Ground 23 is that far from directing the jury that when they considered this issue they should have regard to the circumstances of those interviews (for example, their length, their nature, their frequency, the times of day they were conducted) the judge in effect told them to disregard those circumstances when assessing the significance of the appellant’s answers. It is said that having regard to the following evidence given by Robinson this was a particularly damaging omission. On the 31st October 1979 Robinson gave these answers in cross examination (see pp 48G to 49A of the transcript of evidence):
Q. You started shouting and asking for God to help you, did you not ?
A. Possibly, yes.
Q. You knew where you had been that afternoon, did you not Robinson ?
A. No.
Q. You knew perfectly well.
A. I knew where I hadn’t been.
Q. What you could not do was to admit it.
A. I’ve already told you if I was there I would have admitted it. Those men had got me broke in little bits. They had been at me day and night for a week. Do you think it was a farce when I was on my hands and knees ?
Q. I made the suggestion that I have Mr Robinson.
A. Yes. They got me smashed to pieces. If I’d been guilty they would have got it out of me and they know they would.
Q. But they never did put a finger on you.
A. I don’t mean in a physical sense, I mean in the state I was in and they knew they had got me as low as a man could be and that is when they was really applying the pressure to me. If I’d been in any way guilty of that they know they would have got it out of me.
Q. Is that why you said, “If you get me a pencil and piece of paper I’ll make a statement admitting it ” ?
A. What good would a statement have been to them or confession? What possible use would it have been to them?, They would have wanted details, “Which way did you go there ? Where is the place ? What’s inside the place?”. I hadn’t got a clue about any of that.”
The following points emerge very clearly from those answers: first, that Robinson was attributing what he said and his demeanour to the various attendant circumstances of the interviews to which we have already referred, and secondly, had he been guilty such were those various circumstances that he would certainly have admitted it. The circumstances were therefore a feature of the evidence which the jury had to consider in assessing the competing claims: The Prosecution’s claim that Robinson had on occasions been on the brink of admitting his presence at Yew Tree Farm and Robinson’s claims to which we have just referred. It is self evident that if the Crown argues that probative significance is to be attached to certain answers or to conduct, in assessing that claim (and any claim to the contrary) the jury must have regard to all the relevant circumstances.
Before considering whether the complaint in Ground 23 is one of substance it is necessary to mention a related complaint. It is said on behalf of Robinson that the absence of an appropriate direction upon the relevance of the various circumstances of and surrounding the interviews was compounded by the manner in which the interview evidence was led before the jury. In the absence of transcripts, or even a schedule, the difficulty for a jury in following the thread and assessing the cumulative effect of the relevant circumstances relating to a particular defendant can be considerable in cases involving (as this case did) a number of defendants each of whom had been interviewed several times over a period of days by different teams of officers and at some length. This of course is not a difficulty encountered today: almost always the jury is provided either with transcripts of what was said or, when there is agreement, with a summary of what was said. In the days when the prosecution had to cope with this difficulty of presentation various options were available to them. One option was to deal with the interview evidence defendant by defendant and the police officers were called in turn, interview by interview, for a particular defendant.
In Robinson’s case, (with the exception of one interview), on the 16th October 1979, the jury heard the details of the interviews on 6th, 7th, 8th, 9th, and 10th December in their correct sequence. The evidence was given by two officers — DS Robinson whose evidence was immediately followed by DCI Jarvis. The exception was an interview in the early hours of 9th December to which we shall return very shortly. The last interview in the sequence “6th December to 10th December inclusive” ended in the early hours of the 11th December. On the 17th October 1979 the jury heard details of interviews which were out of sequence: first an interview at Winson Green Prison on the 22nd December. Next was evidence of interviews between 11.30 and 13.45 on the 11th December at Droitwich Police Station. Next was an interview between 19.10pm and 19.45pm the same day. Two days later on the 19th October the jury heard the outstanding interview from the 9th December to which we have already referred.
On the 22nd October they heard evidence of a short interview held in the late afternoon/early evening of the 11th December. That had occurred between the interviews on the 11th December we have already mentioned. One feature of these interviews which may well have been obscured by reason of the sequence in which this evidence was called is the development of Robinson’s explanations as to his whereabouts during the afternoon of Tuesday the 19th September, 1978. The point is made very simply: on the 17th October the jury heard the evidence of his final explanation whereas on the 19th October they heard evidence of his first — namely, that he thought he was out “thieving with Molloy”. Prior to that, and we will recite this evidence in more detail in another context, all Robinson had said in relation to the Yew Tree Farm raid was “Well you can’t touch me for that job because I can prove where I was”. That was said in the 11.20 interview on the 6th December which the jury heard in the correct sequence. The point can be taken a little further because the emergence of the alibi details which Robinson relied upon at trial began in the 13.10pm interview on the 11th December. Thereafter these details were developed in the 17.30 and 19.10 interviews on the same day. The final details were provided on the 22nd December. That last version (as we have said) was the first to have been heard by the jury. They next heard the 11.30 and 13.10 interviews of 11th December followed by the 19.10 interview of the 11th December. Two days later they first heard the original explanation (thieving with Molloy) and three days later they heard the 17.30 interview of the 11th December.
We regard this feature of the interview evidence as the only significant casualty of the presentation. Whether it was a consequence which helped or hindered Robinson’s case may be debatable. One thing is very clear: any confusion or any failure on the jury’s part to grasp detail which is only truly exposed by hearing the interview evidence in its correct sequence, which was occasioned by the presentation was readily curable, and would have been cured, in Counsel’s speeches.
Against that background we turn finally to the summing up. The Judge had a good deal to say in his summing up about the interviewing of these appellants. Beginning at page 66H he said this:
“That is the background against which the prosecution invite you to consider the more specific evidence against the individual defendants.
Much of that evidence is of the interviewing of the Defendants by various Police Officers. Those interviews were carried out in the case of each Defendant over several days and there was sometimes 3 or even 4 interviews of one accused during one day. Some of the interviews were short, others lasted for up to about 3 hours or more. On some occasions one or other of the Defendants being interviewed became upset and cried or sobbed or showed signs of some distress — those matters were noticed at the time by the Police Officers concerned and you were told about them in evidence and, with one or two exceptions, the accused men agreed that they were accurately recorded.
You must consider those matters when evaluating the evidence of what each Defendant said during those interviews. The large part of the evidence as to what was said during the interviews is either accepted by the Defendants or at least not challenged by them. They either agree with it, say they couldn’t remember it, but in effect had no reason to dispute it. There are, you will recall, one or two important parts of these interviews which are denied by the 3 Defendants who gave evidence. But even as regards those parts of the evidence which are not disputed you will have to consider what allowance, if any, you should make for the fact that the Defendants were no doubt undergoing an ordeal when being questioned, although quite properly, over a longish period of time by different police officers.
You have the advantage of seeing 3 of the Defendants being questioned in quite prolonged cross-examination by skilled and experienced Queen’s Counsel in this Court. That was no doubt also an ordeal. You know, because you saw and heard it, that the questioning in Court was done firmly and persistently but with complete fairness. So you have seen how each of those 3 accused can stand up to fair but persistent questioning. None of the accused has suggested for one moment that the questioning by the Police Officers was not fair. There are stringent rules which govern the interviewing of suspected persons by Police Officers. In some criminal cases Defendants allege, and sometimes no doubt quite rightly, that those rules have been broken so that their answers given in interviews were not given freely and voluntarily. No such suggestion is made by or on behalf of any of the accused in this case.
So you need not be concerned by the fact that there was a lot of questioning by Police Officers who were carrying out their duty, and the Prosecution are fully entitled to rely on what was said during those interviews and to invite you to draw conclusions from that evidence. But it is, of course, entirely a matter for you to decide where any of that evidence is in dispute, where the truth lies, and in doing so you must approach the evidence given by the Police Officers in just the same way as you would that of any ordinary witness, and you should not make assumptions that just because a witness is a Police Officer he is therefore bound to be right and the Defendant who disagrees with him is bound to be wrong. Having decided what questions were put and what answers were given you must then decide what importance you attach to such evidence and decide where the truth lies.”
At page 116 the judge began his summing up of the case specifically affecting Robinson. It seems clear to us that in spite of the number and in some instances the length of the Robinson interviews only two points of substance really emerged from them: First whether, as the Crown claimed, he had on occasions been on the very brink of admitting his presence at Yew Tree Farm and second, if the alibi was true, why was there such delay in furnishing the police with the details of his whereabouts that Tuesday afternoon? May his repeated claims to have genuinely forgotten the detail have been true? Had he, as the Crown suggested, ‘fixed’ his alibi with Carol Bradbury during her visits to Winson Green in mid-December 1978? It was these two points which the judge focused the jury’s attention upon in the summing up. He reminded them of the alibi point by referring to various passages in Robinson’s cross-examination having already reminded them in detail of Robinson’s own evidence as to his movements that day. At p.117E the Judge said:
“I am not going to go through all those interviews with the police and Robinson concerning his alibi.”
As to the first point, we have already recited the passages at pages 120-121 of the transcript in which the judge reminded the jury of some of the occasions in respect of which it was said that Robinson was on the brink of admitting his presence at Yew Tree Farm.
It is true that the judge did not in Robinson’s case remind the jury of any interview details concerning their length, their times or their frequency. As we have already stated, in assessing whether the Crown’s claim that on occasions Robinson was on the brink of admitting his presence the jury would have to have regard to all the relevant circumstances. Robinson in his evidence emphatically denied the claim. He maintained that such was the pressure placed upon him by the police had he been guilty he would have admitted it. The occasions when he broke down were indicative of the pressures rather than of stifled remorse. It would therefore in our judgment have been both appropriate and desirable for the judge to have set these particular passages in the wider context of the developments which had preceded the occasions he was referring to. It does not follow from that observation that in our judgment Robinson was therefore deprived of the benefit of a point which was bound to assist him. He was an experienced and active criminal who was entirely familiar with police procedures. Given the nature of the killing which the police were investigating it is not in the least surprising that Robinson was interviewed frequently, on occasions at some length and with some degree of firmness. Nonetheless, that sort of consideration must be numbered amongst the circumstances to which the jury had to have regard in assessing what adverse inference, if any, was to be drawn from what Robinson said and did in some of the interviews. In the passages we have cited from pp.67 and 68 of the transcript the judge spelt out in clear, if general, terms that the jury should have regard in evaluating the interview evidence to the fact of distress and to the fact of the ordeal of being questioned “over a longish period of time by different police officers”. A little earlier the judge had reminded the jury that the “interviews were carried out in the case of each defendant over several days and there was sometimes 3 or even 4 interviews of one accused during one day. Some of the interviews were short others lasted for up to about 3 hours or more”. Although criticised in ground 23 for so doing, the judge was entitled to draw the jury’s attention to the manner in which the defendants stood up to the ordeal of cross-examination conducted by skilled Queen’s Counsel. It is inconceivable that the jury would have regarded a defendant’s performance in the witness box as a conclusive indicator. It could be no more than the roughest of guides. The judge is further criticised in Ground 23 for, as it were, giving the police conduct a clean bill of health. He said “none of the accused has suggested for one moment that the questioning by the police officers was not fair”. That was true. Having then said that there were stringent rules which governed the interviewing of suspects, he observed “no suggestion is made by or on behalf of any of the accused” that the rules had been broken and that in consequence answers had been given which had not been given “freely and voluntarily”. That, too, was true. Where there was, from first to last, no challenge to the propriety of the police conduct, the judge can scarcely be criticised for spelling out that last point. In our judgment that very carefully worded passage cannot be faulted. The criticism that in effect the Judge instructed the jury to disregard the circumstances of the police interview in assessing the significance of any answer or answers is entirely misplaced and confuses two distinct points. Having identified features of the interviews to which the jury had to have regard he went on to remind them, accurately, that there had been no challenge to the propriety of the police conduct. The question of police impropriety did not therefore arise as a further factor for the jury to have regard to.
Notwithstanding the single criticism which, some eighteen years later, we have ventured to make, we have come to the conclusion that Ground 23 fails.
The Identification of James Robinson
Grounds 7 – 20 of Robinson’s grounds of appeal relate to various aspects of the identification evidence.
The prosecution relied upon the evidence of a number of witnesses who were driving their vehicles in the near vicinity of Yew Tree Farm that Tuesday afternoon. Their evidence was relevant because they described in varying degrees of detail the people they saw and vehicles they saw. On 23rd February 1979 Robinson participated in an identification parade. No one positively identified him as he stood in the line-up but thereafter three witnesses had something to say about him. Those three witnesses were a Mr Madeley, Mr Mario Sabetta and Miss Wendy Stagg.
Before embarking upon our consideration of the complaints which arise from their evidence, particularly that of Sabetta and Miss Stagg, there are some preliminary points. First we remind ourselves of certain unchallenged times. Carl started his paper round that afternoon at about 3:50. He was seen in Lawnswood Road by Mr Phelps at around 4:15 to 4:20. Accordingly, as the judge told the jury, “his time of arrival at Yew Tree Farm is fairly accurately placed by all the evidence as being about 4:20pm”. His body was discovered in the farm house by Dr McDonald between 5:15 and 5:30. As we have already stated, we have no doubt that when Carl arrived at Yew Tree Farm the intruders were already inside. For the reason given earlier in this judgment the likelihood is that the interval between his arrival and the killing was brief.
The judge gave two warnings about the identification evidence: He gave the full ‘Turnbull’ direction, followed by this specific warning as to the quality of the identification evidence which implicated Robinson (p 123A-D):
“In this case I would suggest to you, as I have done in respect of other evidence, that having regard to the circumstances in which the identifications were made, including that of Wendy Stagg, and having regard, as you must in all cases to the degree of certainty evinced by the witness making the identification, I would say to you that if that were the sole evidence against Robinson it would be unsafe to convict on that evidence and that alone. But what I say to you in this case is that the evidence is evidence which it is right that you should consider coupled with all the warnings that I have given, and if you think it assists you then it can slot into place as one of the pieces of evidence which make up the case for the Prosecution.”
Not one of the three witnesses whom we have identified spoke of seeing a bald man or a man with extremely short hair. In seeking to establish that one of the men who had been seen by one or more of these witnesses was in truth Robinson the prosecution were confronted with this problem: On the 19th September 1978 Robinson had a shaven head and very short hair. The judge identified the problem and canvassed a possible solution in the following terms(p 123 E – H):
“You must, of course, in this case bear in mind the evidence that on 25th August Robinson for some reason or other had had his head shaved, his hair shaved off altogether, and by September the 19th it follows that he would not have had very much hair still, and no-one suggests that the person they identified or saw outside Yew Tree Farm that day had a shaved head or very little hair indeed. They suggest quite the contrary, and so it follows that if that person was Robinson he must have been wearing some form of wig. You will bear in mind that those who saw him in the California at about the same time did not speak of him going in there with a completely bald head. So it may be you will conclude that he did somehow conceal the shaving by wearing some sort of wig, but that is a matter for you to consider.”
That passage has given rise to the following grounds of appeal:
“Ground 7
(I) The learned trial judge fell into error at p123 E – H by introducing an unfounded theory, unexplored in evidence, that the recently shaven hair of the Appellant could be reconciled with these descriptions [ie those of the witnesses] by his wearing a wig.
(Ii) He further erred by commenting that certain witnesses from the California [Public House] did not mention his bald head. The implication that as a matter of course the Appellant was wearing a wig was inconsistent with the evidence of (Anwar) Mohammed and the witness statement of D/S Harrison.
Ground 8
(I) In aggravation of the said material irregularity: the Crown wrongly failed to disclose ‘X-rated’ witness statements from customers of the California, who did refer to his shaven head; and to the one isolated occasion in the California probably on 25.8.78, when the Appellant had worn a black woman’s wig as a part of the joke — as volunteered by the Appellant in his police interview.
[The names of four people who made witness statements are then set out: Steven Carter: (2:1:79); James McCann (3.1.79); Margaret Shepherd (8.1.79) and James Tierney (12.12.78 and 16.1.79). In addition there is reference to the unedited statement of a Crown witness, Carol Wilson]
(ii) No relevant description from Yew Tree Farm referred to black hair. Sabetta’s statement (not adduced in evidence) described the relevant man having ‘long straight sideboards’ inconsistent with a woman’s wig.
The combination of the judge’s improper comment, its timing so that the defence could not respond, the non-disclosure of the relevant statements from the California customers, and the Crown’s failure even after the judge’s comment to rectify the position rendered grave injustice to the Appellant in the only area of direct evidence against him.
Ground 8a
The Crown failed to disclose to the defence the custody photograph of the Appellant taken on 21.9.78 within 48 hours of the murder, which most clearly showed his appearance at that time — see R -v- Fergus 98 (1994) Cr App R 313.”
In short the complaint is that the judge neutralised an important defence point by propounding an unexplored and unfounded theory.
What was the evidence at trial as to the presence and length of Robinson’s hair on the 19th September? The jury were informed in the Crown’s opening of the evidence of Susan Bennett. In her evidence she said that, she had seen Robinson having his head shaved as a joke by James Tierney on Saturday 25th August 1978 — some 25 days before the killing. Tierney too gave evidence to that effect. Anwar Mohammed, the witness who supplied Robinson with the shotgun (Exhibit 25) in late August or early September, told the jury that on that occasion Robinson had no hair.
Three points emerge very clearly from this brief review of the evidence.
First, the true state of Robinson’s head hair on the 19th September 1978 was not an issue at the trial; second, his hair growth at the time of the killing was in truth minimal and third, not a single eye witness description relied upon by the Crown corresponded with that aspect of Robinson’s appearance.
We have no doubt that points 1 and 2 fully explain the fact that the custody photograph of Robinson taken soon after his arrest on the 21st September for the Tamworth burglary was not produced at the trial. Ground 8A complains that the photograph was not disclosed. That is true but had the photograph been requested by the defence we have no doubt it would have been forthcoming. That such photographs existed is clear. A police Action Message dated the 30th March 1979 reveals that six blow-ups of the photograph were obtained for use (if requested) at the trial. Those photographs have not been traced. We are not troubled by that because we are sure that at the time of the trial defence counsel for good reason had no need for them. The point they demonstrated was an agreed fact. Indeed the danger in pursuing it to an unnecessary extent may have prompted the prosecution to do more than they did to cater for the point: For example, Robinson was not asked a single question in cross-examination about his use of a wig. Criticism is made of defending counsel in the grounds of appeal for not adducing from the witness DS Harrison what appears in his statement of the 24th August 1979 which was served as a Notice of Additional Evidence on the 25th September 1979. In that statement, having referred to his dealing with Robinson at 10:30am on the 21st September 1979, the officer said:
“His hair had the appearance of being recently shaved and it was no more than ¼” in length all over. He had a full head of hair and there was no apparent sign of any receding at the temples. His hair was dark brown in colour.”
In our judgment the criticism of defence counsel for failing to elicit those details is not sustainable nor is the criticism of the prosecution for failing to disclose that which the defence did not require but must have known the prosecution had. We perhaps should record that the best currently available photographic evidence of Robinson’s appearance at that time is a photograph of Robinson taken on the 30th October 1978 — some 6 weeks after the killing. The photograph, unsurprisingly shows Robinson’s hair to be short.
What was the evidence (as against Robinson) of his use of a wig? It consisted simply of a remark made during the course of a police interview which began at 14.00 on the 9th December and was given in evidence by DCI Jarvis. We take the extract of the interview from the trial transcript (16th October 1979 p 33 C-E):
“Q. Did you then ask him when he had got his hair cut short and did he indicate that it was just before 21st September 1978?
A. That is true.
Q. Then did you say something to him about a wig ?
A. I said: “why I mention that is in connection with a wig. Have you got one ?” Robinson replied “No” I said: “Do you mean by that you have never had one?” He replied: “Wait a minute. Are you on about the time I was acting the fool?” I said: “What was that?” He said: “I can’t remember when it was but I did put one on in a crowd somewhere and somebody pulled it off and I don’t know what happened to it.” I said: “What sort was it ?” He said: “It was a woman’s but it looked like one of these blokes with his hair permed”. I said: “Did you wear it on the Yew Tree Farm job? He replied: “For fuck’s sake, I’ve told you I was nothing to do with that. Forget it”. I said: “Look let’s talk about the 19th September, the day of this murder. You deny being involved but you can’t give us one detail about what you were doing on that day for us to check”. He said: “I can’t, can I, because I can’t remember what I was doing.”
Robinson’s association with a wig was referred to in the ‘X-rated’ statements of two people namely James McCann (3rd January 1979) (18th January 1979) and James Tierney (12th December 1978) (16th January 1979). Tierney in his statement dated the 12th December 1979 describes how, having shaved Robinson’s head, Robinson borrowed a wig from Carol Bradbury. The statement continues “We went back up to the pub at the opening time of the evening session to show the lads up there what we had done. It was a good laugh and we stopped up there and had a few drinks that night. The wig was a black curly one, the short Afro style.”
McCann in his statement dated the 18th January 1979, spoke of visits to Robinson’s address at 35 Wolston Croft. He went on to say:
“Pat Molloy was living at that address and he used to dress up as a woman and fool about. He used to wear a black lady’s wig it was collar length or thereabouts and fairly curly. About the end of August 1978 on a Saturday night, it was a couple of days after he had his head shaved, that is Jimmy Robinson, he was in the California and he had what looked like the same wig I had seen Pat Molloy with, Pat Molloy was there. Jimmy put it on for a laugh. I don’t know what happened to it, whether Jimmy took it with him or not. I didn’t see anyone else but Jimmy handle the wig.”
Two further X-rated statements referred to James Robinson’s appearance in the California Public House. In a statement dated the 2nd January 1979 Steven Carter, who knew James Robinson because each patronised the public house, said this:
“I can also remember Robinson having all his hair shaved off when he came in the Cali one night. His head was completely bald. All this time he used to wear a tan coloured duffel coat with a hood on, he used to have the hood pulled over his head whilst he was bald.”
Another patron of the California public house was Margaret Shepherd. In her statement dated the 8th January 1979 she said this:
“I remember that soon after I started to go to the Cali Jimmy Robinson had his head shaved. It was quite a laugh at the time. I remember that he used to wear a brown woollen type hat similar to that of a football supporter but without the pompoms. I have seen him in this headgear about three times.”
Notwithstanding the importance of the point identified by the judge in the passage at p.123E-H this was not a detail which had received any attention during the trial. From the defence point of view that was entirely understandable. The prosecution however chose to call the “identification” witnesses and must have appreciated the difficulty in reconciling their descriptions with James Robinson’s actual appearance at the time. More significantly, having regard to the explanation which the judge invited the jury to consider, no question had been put to Robinson in cross-examination relating to his access to or use of any wig.
The wig ‘explanation’ assisted in preserving “identification” as a live issue in the case In the absence of that or some similar explanation relating to the use of headgear, the identifications were unlikely to be identifications of James Robinson.
The judge, having recognised that “if that person was Robinson he must have been wearing some form of wig”, could not have known that the descriptions of what seem to have been two wigs referred to in the X-rated witness statements did not correspond with the descriptions of hair given by the identifying witnesses which in any event did not correspond with each other. Robinson’s own description of the wig referred to in the police interview was “It was a woman’s but it looked like one of these blokes with his hair permed”.
The judge invited the jury to “bear in mind that those who saw him in the California at about the same time did not speak of him going in there with a completely bald head”. In other words the jury were being invited to consider whether that evidence permitted the sure inference that Robinson was at the material time in the habit of wearing a wig. The fact that no one from the California public house in evidence had referred to his baldness may be thought to be a somewhat brittle foundation upon which to build this explanation. Another possible explanation for the absence of the evidence is that no one was actually asked about it. Once again the judge could not have known the contents of the X-rated statements which reveal first that James Robinson was seen in the California public house in his bald state and second that the steps which he took to cover his bald head did not involve the habitual use of a wig. The high watermark of Robinson’s use of a wig is to be found in Mrs Collin’s evidence in the 1988/89 appeal. Notwithstanding her stated certainty of recollection it would be inappropriate to regard that evidence as a reliable indicator of Robinson’s practice in August/ September 1978. For all this court knows the first occasion she considered the point was on the very day counsel put the questions to her. Furthermore the inference which the judge was inviting the jury to consider was not supported either by the evidence of Anwar Mohammed nor by the witness statement of DS Harrison.
Robinson’s access to and use of a wig was a topic which merited some attention at the trial. For whatever reason it was not explored in evidence. We have come to the conclusion that the summing-up was too late a stage in the proceedings to canvass the wig explanation as being the means of reconciling the identification of Robinson with his actual appearance. Whatever the strength of the identification evidence, “identification” remained a live and, therefore, an important issue in the case. The inference as to Robinson’s routine was not in our judgment sustainable on the evidence and it was contrary to the information contained in the X-rated statements.
We have little doubt that had the prosecution had the contents of the X-rated statements in mind at the time of the summing-up the judge’s attention would have been drawn to them. However, having regard to the Crown’s acceptance of the evidence given by its witness, Susan Bennett, we are unable to understand why any of the statements to which we have referred were X-rated. In our judgment the statements of Steven Carter and Margaret Shepherd should have been disclosed before the trial and those of Tierney and McCann should have been disclosed at the latest after Susan Bennett had given her evidence.
We deal next with the identification evidence. We have already recorded that the judge warned the jury that had the identification evidence been the sole evidence against James Robinson it would be unsafe to convict him. This evidence, coupled with the necessary attendant warnings, was accordingly left to the jury on a basis identified by the judge in these terms: “If you think it assists you then it can slot into place as one of the pieces of evidence which make up the case for the prosecution”.
There are three relevant witnesses, Mr Madeley, Mario Sabetta and Wendy Stagg. Various grounds of appeal are founded upon complaints relating to each of them. We will consider the evidence of each in the sequence followed by the judge in his summing-up. We begin therefore with Mr Madeley.
Mr Madeley spoke of seeing an oldish green Ford Cortina Estate leaving the driveway of Yew Tree Farm and turning onto Lawnswood Road. Inside the vehicle were two people whom he described in his statement of the 22nd September 1978. He attended the identification parade on the 23rd February 1979 and believed the man at position 5 (who was Robinson) may have been the passenger he had seen in the estate car. It is unnecessary to analyse the detail of Mr Madeley’s evidence because such were the various uncertainties within it (including uncertainty as to the day of his observation) that of his evidence the judge said this:
“I for my part would have told you in terms that that evidence should be wholly disregarded as evidence in this case, but Mr Draycott said it may help you to come to the conclusion that Miss Stagg’s evidence cannot be relied on because of the difference in description of the man seen by Mr Madeley and Miss Stagg, and it is for that reason that the evidence remains, after consideration, but only with this warning, it is so uncertain by way of evidence it may not even be the right day Mr Madeley is talking about and that you should in no way use that evidence against Robinson. If you think it can be used in his favour, then use it in his favour, but not against him.”
Ground 12 of the grounds of appeal is in these terms:
“The learned trial judge failed properly at any stage of his summing-up to place before the jury the description evidence of the three witnesses Sabetta, Madeley and Stagg.”
We were informed during the course of counsel’s submissions on behalf of James Robinson that this ground is intended to reflect amongst other things the failure of the judge to remind the jury of Mr Madeley’s description of the man whom he thought resembled Robinson — in particular his description of the man’s hair. We reject this criticism. We have no doubt that Robinson’s counsel at trial made it very clear to the jury what part of Mr Madeley’s evidence he relied upon and the judge made it equally clear that although the jury were entitled to use that witness’ evidence in favour of Robinson they could not use it against him.
Sabetta spoke of seeing two men in Lawnswood Road on the 19th September 1978 at around 3:25 – 3:30 pm. The shorter of the two carried a firearm. He too attended the identification parade on the 23rd February 1979 and later said that the man in the 5th position from the left (who was Robinson) seemed familiar: Asked in cross-examination to describe the man he had seen in Lawnswood Road he said: “Tallish… I can’t remember very clear (sic) about the hair but I can remember shall we say the person concerned as tall, perhaps 6 feet, well-built, weather-beaten face”. He described the hair of the man he had seen on the identification parade as “a rather darkish colour …..ordinary collar length”. It is true that when summarising this evidence in the summing-up (pp.125-126) the judge did not refer to Sabetta’s recollection of the shade of Robinson’s hair on the 23rd February 1979. No possible criticism can be made of that. It is convenient at this juncture to refer to Ground 10:
“The learned judge fell into error in ordering that the witness statements of Mario Sabetta and Wendy Stagg be [exhibited]……”
Two sentences in Sabetta’s statement were adduced in cross-examination. Both related to his description of the firearm carried by the smaller of the two men. Immediately prior to Mr Sabetta being called Mr Madeley’s statement had been exhibited and the judge had explained to the jury the evidential status of a witness statement. He made it clear that unless a witness adopted as true something he had said in the statement, the content of the statement was not evidence but was simply available “as a test of the evidence which is the evidence given in court”. Notwithstanding the very limited use to which Sabetta’s consolidated statement of the 15th February 1979 was put in cross-examination, it became Exhibit 79. It is less than clear whether copies of it were actually distributed to the jury. Had the jury seen the statement we have no doubt that they would have been perplexed as to its true relevance. It contained a description of the taller man which included the following details: “His hair was dark brown, collar length at the back, straight and pretty tidy. He had long straight sideboards”. We regard the exhibiting of this statement as inappropriate. Any jury reading those details, in the absence of a specific direction as to their relevance, would almost certainly have taken note of them. However if the jury did see the statement we are satisfied that Robinson’s case on the issue of identification was not thereby prejudiced because the only additional details were the adjectives “dark brown, “straight” and “pretty tidy” and that the man had “long straight sideboards”. Ground 20a is a complaint that the jury “were left in ignorance of the fact that Sabetta’s description of the relevant man….referred to ‘long straight sideboards’ which contrasted with the Appellant’s then known appearance”. Furthermore, and significantly, no objection was taken to the exhibiting of this, or any other, witness statement.
As in the case of Mr Madeley, so in the case of Mario Sabetta the judge gave a specific warning about the quality of his evidence of identification.
“Well again, having regard to the circumstances of that evidence you may think it is, at best, a very tentative piece of evidence, saying that the man resembled Robinson, but he could be in no way sure, and it would be wrong for you to pay very much weight to that piece of Mr Sabetta’s evidence, although the evidence of seeing the two men crossing the road, one with a gun, which he thought could be Exhibit 25, is of course important.”
We deal now with the complaints in Grounds 10 and 12 relating to the evidence of Miss Stagg. The criticism that the judge did not summarise Miss Stagg’s evidence about the appearance of the man standing by the blue car in Lawnswood Road is unfounded. The relevant passage is at pp 127G-128D. The judge also directed that her consolidated statement dated the 23rd February 1979 should be exhibited. It became Exhibit 80. There was no objection. Some three sentences in the statement had been referred to in cross-examination. Once again, it is less than clear whether the jury were ever given copies of the statement. Although we regard the exhibiting of this statement as inappropriate we are perfectly satisfied, even if the jury did see it, that Robinson’s case on the issue of identification was not thereby prejudiced.
In short we have reached the firm conclusion that there is no substance in the complaints concerning the evidence of Madeley, Sabetta and Miss Stagg which are reflected in Grounds 10, 12 and 20a. However, so far as Ground 20a is concerned, we accept that if, as seems likely from our perusal of the transcript, the jury did not see Sabetta’s statement, his observation that the taller man had “long straight sideboards” was relevant to the question of whether that same man was wearing a wig. As we have already stated, for whatever reason, the “wig explanation” did not become a live issue until the summing-up. Counsel cannot therefore be criticised for not cross-examining Sabetta upon this detail in his statement and very obviously the judge did not have it in mind when he made his observations.
We turn now to other complaints, some of greater substance, concerning the evidence of Mr Sabetta. These complaints are reflected in Grounds 17, 18A, 19, 20b and 20c. We have already recorded that the substance of Sabetta’s evidence was that on the 19th September at about 3:25 to 3:30 pm while driving along Lawnswood Road he noticed a blue Ford Estate car parked on the opposite side to Yew Tree Farm. He estimated the distance of the vehicle from Yew Tree Farm at around 100 to 150 yards. He observed two men coming from the rear of the car and crossing the road. The smaller of the two was carrying a firearm. At the trial attention was focused primarily upon his evidence as to first, the firearm and second, the physical appearance of the taller man. Having said he saw the smaller of the two men carrying a firearm he was shown Exhibit 25 and he was asked how Exhibit 25 compared with the firearm he saw. He replied “I would think it’s about the same sir”. He said that he did not see the stock. In cross-examination he said that the gun did not have a long barrel. He denied that his impression at the time was of a gun with a long barrel. He was then reminded of what he had said in his statement:
“The gun appeared to me to be large and solid. I cannot say if it had one barrel or two but the stock must have been short for I saw a long barrel without seeing any stock.”
The witness was later asked:
“Q. …At the time it seemed to you that two people might be on some sort of shooting expedition carrying an ordinary long-barrelled gun ?
A. Yes, perhaps, yes.”
Thereafter he said “I would say it definitely was not, shall we say, a full length gun”. To the question “…but it was certainly not a gun with only 12 inches showing was it …?”, he replied: “Perhaps more. Q. …..and considerably more for you to say it has a long barrel. A. …. Perhaps more, yes “. In re-examination he was shown Exhibit 26 — a double-barrelled shotgun. He was then asked:
“Q. From what you saw in Lawnswood Road how did the length of the gun that you saw the man carrying compare with those [ie Exhibit 25 and 26] ?
A. Like I said the length would have been about that size and length.”
The witness indicated Exhibit 25. Thereafter, he said of the barrel length of Exhibit 26 that it was “definitely too big”.
The complaint in Ground 17a is that the prosecution failed to disclose “Major Incident Action Message” No 807 dated the 20th September 1978. This appears to have been Mr Sabetta’s first communication to the police. The message reads as follows:
“At about 3:30 on Tuesday the 19th September 1978 I saw two men walking along Lawnswood Road away from a blue Escort or Cortina which had another man in the car which was 200 yards away from Yew Tree Farm. One of the men walking had a rifle.”
Two points are made: first, that had counsel been aware that Sabetta had used the word “rifle” in his first description of the firearm he would have cross-examined him about it. Having regard to the line of cross-examination pursued at the trial although we have no doubt that counsel would have used this document we are sure that it could not have contributed significantly to the undermining of Sabetta’s credibility, which must have been achieved when he was reminded of the passage in his statement to which we have referred.
Furthermore, in an action message dated the 26th September (No 1797) from DS Wys (the officer who took Sabetta’s statement), the following appears:
“I am just interviewing a witness, a Mr Sabetta…..One of the men was carrying a gun (not known if shotgun or rifle)…..”
The second point is that in the Message No 807 he is recorded as having placed the car “about 200 yards” from Yew Tree Farm. In his first statement (dated the 26th September 1978) he estimated the distance as “some 100 yards from the driveway of Yew Tree Farm”. In his evidence he estimated the distance as “around 100 to 150 yards”. We regard this variation as being totally insignificant.
Ground 17b raises a rather different point. Mr Sabetta made his first statement on the 26th September 1978. In it he stated that on about three occasions a week he travelled along Lawnswood Road and that almost every Tuesday he would buy petrol at the Kingswinford Filling Station and continue home via Lawnswood Road. Tuesday the 19th September 1978 was just such a Tuesday and he recalled telephoning his wife that day from the call box outside the filling station. We have already referred to Action Message No 807 which gives the relevant date as Tuesday the 19th September. In the statement of the 26th September Mr Sabetta said that shortly after he passed the parked vehicle and as he approached the junction with the A449 “I also remember that I saw a girl walking a dog near to where the vehicle was parked”. Later in the statement he gave these further details:
“I am not able to place the girl who was walking the dog in relation to the parked car. I may have seen her shortly before or after I passed the car, certainly it was within yards of the car. She was walking along Lawnswood Road towards the A449. She is about seventeen years of age, long hair, to just below her shoulders, straight, light brown to blonde in colour. She is about 5’2″, slim build. I have seen her before, walking the dog in this road during the afternoon at about the same time. She was wearing trousers and a jumper or pullover, tight fitting, cream or creamy colour. I might know her again. I cannot describe the breed or colour of the dog, it is a medium size dog.”
The police investigated that sighting with some success. They traced the lady (a Mrs Oakley) to whom Sabetta was apparently referring. She was interviewed on or about the 30th November 1978 and she made a statement on the 2nd December. Action Message 12601 reports the result of the interview. Mrs Oakley was not in Lawnswood Road on the 19th September although she did regularly walk her dog in that road, (either in the morning or the afternoon), but not always as far as Yew Tree Farm. This revelation, as the concluding words of the message state, raised the possibility that “Sabetta could be confused over the day he saw the woman with the dog”.
In her statement Mrs Oakley said that her dog was a red setter, that on the 17th September she had travelled to Sheffield and was still there on the 19th September. She further stated that until the second week in August she had ‘brushed back’ shoulder length hair. Thereafter it was cut short and permed. She fixes the time of the change in style by reference to her holiday on the 20th August. Mrs Oakley is 5’4″ she was of slim build , her hair was brown and at the time she made her statement she was 21. There can be little doubt that Sabetta was referring to the same lady. There can be no doubt that he was in error in recollecting her presence in Lawnswood Road on the 19th September. Although one explanation for that error is that the events he described occurred on a different date, another explanation is that he mistakenly incorporated into his recollection of the events of the 19th September the familiar sight of Mrs Oakley and her dog. Either explanation would be relevant to a consideration of Sabetta’s credibility and we accept that Mrs Oakley’s statement should have been disclosed.
In his first witness statement of the 26th September 1978 Mr Sabetta stated “I believe I could identify the two men that I saw”. This sentence does not appear in his consolidated statement dated the 15th February 1979. On the 23rd February 1979 he attended an identification parade at Cannock police station. The parade was supervised by Chief Inspector Moss who gave evidence at the trial. James Robinson stood on this parade. When Sabetta was brought in, Robinson stood fifth from the left. When Sabetta was asked by the Chief Inspector whether he would like the parade to turn or be at an angle, Mr Sabetta replied “I would like to look first of all”. When he came to the end of the line he stopped and said ‘No’. He was then escorted off the parade.
That same day he made a witness statement in these terms:
“I was escorted into a room by a police officer when I saw a number of men standing in a line. I was unable to identify any of these men as the person/s I saw in Lawnswood Road in the afternoon of Tuesday 19th September 1978.”
Over one year after his observation of the men in Lawnswood Road Mr Sabetta gave evidence at the trial. That was in the afternoon of the 10th October 1979. During the morning of that same day, more precisely, between 10:35 and 11:20 DI Wordley took a further statement from him. In the statement which was served as a Notice of Further Evidence no doubt later that morning, Mr Sabetta stated:
“It was carefully explained to me that I must be 100% sure about any identification I made. I walked along the line of men and did not stop to look at any particular man. I particularly noticed the man who was standing fifth in the line from my left as I faced the parade. I strongly suspected that this was one of the men who I had seen near Yew Tree Farm on the afternoon of Tuesday 19th September 1978. I felt that this was the taller of the two men who I had described in my statement to the police …. I felt in my own mind that this man …. was in fact the man I had seen near Yew Tree Farm but was not absolutely certain enough to make a positive identification. I have had time to think this matter out since the time of the parade. I am still of the same frame of mind in as much as I felt fairly certain but not absolutely certain that the man I saw on the parade was the same man I saw near to Yew Tree Farm. Following the parade and whilst on my way home I did mention what I have just described to a plain clothes police officer.”
In his evidence in chief he told the jury that the man standing fifth from the left seemed familiar but he was not sure. The examination in chief ended in this way:
“A. The one in the line was not like the one carrying the gun
Q. Was he the other one of the two who had been crossing the road ?
A. He was one of the two, yes, I would say.”
Cross-examination on the topic of identification was limited to a question about the hair of the man he had seen on the parade who seemed familiar. Thus, the jury had no inkling of that morning’s revelation nor did they know the terms of his statement on the 23rd February 1979 which he made after the parade. The relevant wording in that statement followed the wording of an earlier statement dealing with an identification parade held on the 26th January 1979 when Sabetta had been asked to say whether anyone on that parade was either of the two men he had seen on the 19th September. Various questions therefore inevitably arise. As Mr Sabetta did mention his reaction to the officer who escorted him home on the 23rd February why did he not say anything to the officer who had taken his statement earlier that day? That officer was DS Harrison — not an officer who was well removed from the inquiry. Why did the officer to whom he did mention it not report that fact? Who was the officer to whom Sabetta claims to have mentioned it? Apparently no-one knows. In what circumstances, and when, did his reaction to the parade on the 23rd February first come to light? Eighteen years on these questions are unlikely to be answered: Certainly we have not been provided with any answers. Further questions arise in relation to the handling of this topic by defence counsel at trial. Sabetta was not cross-examined at all about the late revelation. We regard counsel’s decision to resist that temptation as prudent having regard to Sabetta’s claim that he had mentioned his reaction later that same day to a police officer. Counsel might have asked for inquiries to be made as to the identity of the escorting officer in order to discover whether he could confirm that the topic had been discussed and that the terms of the discussion were as described by Sabetta. However, embarking upon that course carried certain obvious risks. It would be quite wrong for this court to criticise counsel’s decision not to pursue that aspect of Sabetta’s evidence. After all, the high-water mark of this ‘identification’ was Sabetta’s evidence that he was not sure Robinson (the fifth man) was the man he had seen; he merely seemed familiar. On the evidence, that stood in rather stark contrast to Sabetta’s word ‘No’ which he uttered having inspected the line-up and before leaving the parade area. Ground 20b is a complaint that the jury were unaware of the fact that Sabetta had first revealed in writing on the 10th October 1979 his reaction to Robinson’s appearance on the identification parade and the further complaint that he was not cross-examined about the circumstances in which his statement came to be made. For the reasons we have given these are not, in our judgment, complaints of significance, nor is the complaint in Ground 20c that the jury were unaware of the statement of the 16th January 1979 to which we referred earlier.
Ground 18A is a complaint that the judge wrongly rejected a submission at the conclusion of all the evidence that the ‘identification’ evidence given by Sabetta should be withdrawn from the jury. The jury by then having heard the evidence, this appears to us to have been a submission upon what the judge should say to the jury in his summing-up. A similar submission was made in respect of the witness Madeley which the judge accepted. We have already cited the terms which the judge adopted when dealing with that evidence. The submission in the case of Sabetta was founded on a suggested breach of Rule 20 of the Home Office Identification Parade Rules (Circular No.109/1978), Sabetta’s belated witness statement and the general weakness of his evidence. The short answer to the submission was that the evidence was weak and that is precisely how the judge characterised it to the jury. There had been no positive identification there could therefore have been no breach of Rule 20 which caters for the manner to which an identifying witness should identify the person he recognises. We have already recorded the terms in which the judge dealt with the quality of Sabetta’s “identification”. We do not overlook the fact that the judge, having said that “It would be wrong for you to pay very much weight to that piece of Sabetta’s evidence”, then added “although the evidence of seeing the two men crossing the road, one with a gun, which he thought could be Exhibit 25, is, of course, important”. In short there were two aspects to Sabetta’s evidence. In our judgment the judge properly fairly and accurately left those issues to the jury.
Ground 19 is a complaint that when reviewing Sabetta’s evidence at p 125-126 the judge “failed to mention and coherently present to the jury the following features so as to enable them to assess their cumulative effect:
(i) the details of the description given by this witness;
(ii) his leaving the identification parade on 23.2.79 simply saying ‘No’”
Having regard to the specific warning the jury were given about Sabetta’s evidence which was sufficiently and fairly summarised, we reject the criticism. Although it is true that the judge made no reference to Sabetta’s one word observation on the identification parade, we are confident that counsel would have reminded the jury about it.
We deal now with the evidence of Miss Wendy Stagg. Although the judge dealt with the detail of the identification evidence at a relatively late stage in the summing-up, much earlier he had dealt with the evidence concerning the times of vehicle sightings and the descriptions of vehicles. The witnesses who gave that evidence included both Sabetta and Miss Stagg. The terms the judge used when he was dealing with how the jury might regard her evidence stand in very marked contrast to what he had to say about Madeley and Sabetta.
At p 42A of the summing-up the judge said this of Miss Stagg:
“Miss Wendy Stagg, the school teacher who later identified Robinson with what she told you was something like certainty, also passed the farm entrance that afternoon. It is entirely for you to assess her reliability as a witness, but you may have found her careful and impressive, although clearly nervous. She was certainly very definite about her timings and she said she had left her place of work at 4:10 and would have been in Lawnswood Road at between 4:40 and 4:45. She said she saw two vehicles at the farm entrance, one a plum coloured car and the other a blue estate. They were in Lawnswood Road, only a few feet from the entrance to the farm, and facing towards the A449. The blue estate was stationary but had apparently just reversed out of the farm entrance and was in front of the plum car. She did not notice anyone in the plum car, but there were two or possibly three people in the estate, and another man was standing on the passenger side of the estate car apparently talking to it’s occupants. She later identified that man as Robinson. She said that the lower part of his body was hidden from her. She was cross-examined about her identification of Robinson, which as I have said I will deal with in detail later on, but she was not challenged about her positive sightings of two vehicles at just before a quarter to 5 or at about that time. The only challenge to that part of her evidence was to remind her that whilst she told you in evidence in the witness box that in addition to the man talking to the occupants of the estate car she saw two, or possibly three, men or people in the estate car. She had referred in the written statement she had earlier made to the police only to seeing two people in the estate car, but having been reminded of that fact she nevertheless said that her recollection was that she had seen two or possibly three occupants in the estate car. That may be an important piece of evidence, because if she is right it means that she saw two vehicles with four men at the exit or entrance to Yew Tree Farm at about a quarter to 5.”
Miss Stagg made witness statements to the police on the following dates and occasions (1) 20th September 1978; (2) 21st September 1978; (3) 5th October 1978; (4) 16th January 1979 (following her attendance at an identification parade); (5) 23rd February 1979 (following her attendance at an identification parade upon which Robinson had stood); (6) 23rd February 1979. This was her ‘consolidated’ witness statement which had been used at the committal hearing; (7) 27th February 1979 (concerning her state of mind and the various developments at the identification parade four days earlier). Those statements hereafter will sometimes be referred to by the numbers we have assigned to them.
It is necessary next to summarise Miss Stagg’s evidence at trial. She timed her observations as having occurred between 4:40 and 4:45 pm on the 19th September. Of the various persons she saw in or at the two vehicles, her ‘identification’ evidence focuses upon “one man standing virtually at the junction of the two cars”. Because he was behind the blue car her view of him was confined to “roughly” his chest upwards. She went on to tell the jury that on the identification parade on the 23rd February 1979 she saw someone who seemed familiar. He stood third from the right as she proceeded along the line. When asked why she did not identify him by physically touching him she said: “There are many possible reasons. Fear I think, was possibly one consideration”. As she was going through the doorway to leave the parade area, she said “I would like to say something”. She was escorted to a room where she told a uniformed officer that she thought it was the man standing third from right. She thought that man was the man she had seen standing at the blue car. Asked at the trial what her state of mind was at the time she saw the man third from the right, she said:
“One of immediate recognition and familiarity but I was also obviously extremely nervous at the whole proceedings and my heart was beating very fast.”
She elaborated on this identification when she was cross-examined. Asked what she had noticed about the man at the scene that enabled her to think she could identify him later, she said:
“He was almost I wouldn’t say a “photographic image” but I did look carefully at him as I drove by.”
She then said she had noticed “the outline of his profile and the general shape of his head”.
Having then repeated that when she saw the man on the parade he was “immediately familiar” she agreed that after concluding her inspection of the line she was asked whether she could identify anyone and to that question she had replied ‘No’. She then agreed that perhaps she had said to the uniformed officer “It could have been the third man from the right — I wasn’t sure enough”. In fact she had said according to the later evidence of Chief Inspector Moss:
“You told me I have to be 100% certain but how can I be? I think it was the man standing third from right.”
The contrast between the various expressions she had used was put to her and she replied “The words seem vague but the feeling was reasonably sure”. She was next asked about the hair of the man she observed at the scene. She said:
“I did see his hair…. he didn’t wear a hat. It appeared to be almost, I would say mousy colour but the sun was shining very brightly….there was a glare over his hairstyle….to say it was black or brown or blond would be too definite a colour….it appeared to be dark but there was sunlight gleaming off it in which case it could have been grey.”
She then said the sort of impression she got was dark hair flecked with grey.
Next counsel asked:
“Q. How much hair was there ?
A. A reasonable amount
Q. What was the hair like of the man you saw on the identification parade third from the right ?
A. It appeared to be longer
Q. Longer ?
A. Longer
Q. But the same…..
A. Darker because we were in different conditions on the day in a much darker atmosphere.”
She was then reminded that in her statement she had described the man by the car as “grey haired”. Her reply: “Greying. It appeared to be greying in sunlight”. She was then shown the consolidated statement of the 23rd February. Counsel, as he did so, invited correction if there was any difference between that version and the content of her first statement. The transcript then reveals this observation by prosecuting counsel:
“There is a bit of a problem. There are so many earlier statements and they are not all immediately in front of me at the moment”
Her statement of the 23rd February read:
“I would describe the man who was standing by the stationary vehicle as grey haired but not old.”
Miss Stagg’s reaction to that was:
“I said with sunlight shining on his hair it appeared he was greying…. It was an extremely bright sunny afternoon, very bright sunlight and as I drove past it was possible that it was greying. At the identity parade it was an enclosed atmosphere, the worst of winter, extremely dull and under those conditions I was able to recognise the man and the fact that his hair was darker than my first impression when I drove by.”
She was then reminded of another sentence in the written statements:
“I didn’t see him too well. I think he had a whitish shirt and no tie.”
The witness said by that she had meant he was half hidden by the car and that she was travelling by at about 20 m.p.h and saw him for only seconds. In re-examination she agreed that earlier she had said she had a “photographic image” of the man as “I drove by”. In fact she had said “I wouldn’t say ‘photographic image’”. She said that what she obtained as she drove by was “a reasonable impression of the person standing on the pavement”. The view she had was “his front right profile which took the nose and the mouth and the chin”.
This review reveals certain aspects of Miss Stagg’s recollection which necessarily had to be borne in mind when assessing the reliability of her evidence and the quality of her identification evidence. In particular the contrast between her ‘No’ at the conclusion of her inspection of the line up and her evidence, having seen the man on the parade, that her reaction was “one of immediate recognition and familiarity”. We do not criticise defence counsel for not exploring that development further than he did. To have risked the introduction of her statement four days later would to say the least have been imprudent. Furthermore, in her statement of the 23rd February (Statement No 5) she spoke of the man on the line up having “a great resemblance to the person I saw standing on the pavement”. Next was the contrast between the description in her sixth statement of the man being “grey haired” and her repeated assertion in evidence that with the sunlight upon the hair it appeared to be greying. “Grey haired” was also the description she gave in her first statement. Finally of the quantity of hair she said that the man at the scene had “a reasonable amount”
We are told and we accept that copies of Miss Stagg’s “unedited” statements were served on the defence in July 1979. All were therefore available for use in cross-examination. That is not unimportant because various complaints are made in the grounds of appeal which are founded upon the existence of inconsistencies within the unedited statements. In all, three have been drawn to our attention. It will be recalled that the witness spoke of two vehicles, a plum coloured car stationary in Lawnswood Road and blue estate stationary in a reversed position pulling out of the Yew Tree Farm access road. Most of that vehicle was in Lawnswood Road. Two or three people were in the blue car and one man stood “virtually at the junction of the two cars” on the passengers side of the blue car. He appeared to be communicating with the people in the blue car. She noticed no one in the plum coloured car.
In her sixth statement (23rd February 1979) most of these details appear although in the statement she said there were two men in the blue car and she said nothing about the occupancy of the plum coloured car. However in her first, second and third statements
a) she made no mention of the man who was standing outside the vehicle talking to anyone;
b) she made no mention of seeing any other person save the man standing by the cars. In her statement of the 16th January (her fourth) she said “I did not identify on the parade the person I saw outside Yew Tree Farm in Lawnswood Road”; and
c) the first mention of the man standing by the passenger door of the blue car was in her 6th statement (i.e. the consolidated statement).
Ground 13 is the groundless complaint that, as the unedited statements had not been disclosed, the defence were unable to explore those inconsistencies in cross-examination. We accept however that in her statement of 23rd February Miss Stagg’s picture of what she had observed contained potentially significant details which were not included in her first statement. Thus, her first reference anywhere to the fact of and number of people in the blue car (two) appeared in that sixth statement (the “two” became “two or three” in evidence). Had the fact of that late reference to people and numbers and of the late reference to the standing man talking to an occupant of the blue car been in evidence, it may have resulted in some cautionary judicial advice to the jury or, at any rate, a less commendatory preface to her evidence, at p.42 of the summing up. Her evidence that the estate car contained two or three people was eventually the subject of this comment (p.43B):
“that may be an important piece of evidence because if she is right it means she saw two vehicles with four men at the exit or entrance to Yew Tree Farm at about a quarter to 5.”
We have already recorded that the judge observed of Miss Stagg that she was “certainly very definite about her timings”. In her first statement she timed her observations at 4:30 pm. The following day she made a further statement correcting that time. In that statement she said that she had forgotten that she had given someone a lift and that would have resulted, so she believed, in her passing Yew Tree Farm at 4:45 pm. The statement continues “I previously stated that I arrived home at that time. I now believe that the clock I used on my arrival was slow, of this I cannot be sure”. In the consolidated statement of the 23rd February 1979 she stated that she had passed the farmhouse at about 4:45-4:50 pm. In her evidence she said she was at the scene “Between twenty-to-5 and quarter-to-5, somewhere between there”. Thus, the jury knew nothing of Miss Stagg’s rather uncertain start on the topic of times. Standing alone there may be little if anything in the point. In combination with others when the reliability of the witness was the crucial issue arising on her evidence, it may have been a point of some value. For whatever reason, the point was unexplored in cross-examination. That was Ground 13A.
Ground 14 complains that whereas in her fifth statement (following the identification parade) Miss Stagg gave no explanation for her failure to pick out Robinson, in her seventh statement (four days later) she gave a detailed explanation for why she had not done so. This is said to amount to a serious criticism of her evidence. We have already observed that we can well understand counsel not wishing to risk the exposure (in one form or another) of the content of either of those statements. Furthermore, if the belated explanation is a criticism of anyone, it must be of the police rather than of the witness. Ground 14 is without substance.
Ground 9 focuses upon the necessary implication were the evidence both of Sabetta and of Miss Stagg to be regarded as accurate. Each of them gave evidence which, albeit to differing extents, tended to implicate James Robinson. The basic difficulty is stated very simply: Sabetta’s sightings were at 3:25 – 3:30 pm and Miss Stagg’s were at 4:40 – 4:45 pm. The overall period is a very long one: it is 80 minutes.
If both witnesses were correct, it follows that the raiders were in the immediate vicinity of Yew Tree Farm for that length of time. We have been invited to conclude that is not a credible possibility. In support of that submission various features of the evidence were drawn to our attention –
1. The intruders could not have experienced any difficulty in gaining access to the premises which had been empty since about midday.
2. The activities within the house as identified by DS Potts in his evidence (31st October 1979 p.20-23) would not have occupied the intruders for long. The judge described what had occurred in these terms (p. 46A):
“the very thorough and extensive searching of the premises”
However the intruders did not remove from the premises £700 worth of silver in a safe in the pantry access to which was via a locked door secured by a very old mortice lock, the key to which was on a shelf in the cupboard. Nor did they find a wallet containing £200 in cash which was in an upstairs bedroom which had been entered and partially searched. A 12 bore shot gun and ammunition housed in an unlocked cupboard was left behind as was some silver cutlery in the living room.
3. A neighbour (Mrs Gladys Jones) happened (as we have already recorded) to be keeping an eye on Yew Tree Farm that afternoon. At about 4:0 pm she saw the blue estate vehicle with it’s tailgate up. The vehicle was alongside the hedge leading up to the back door which was open wider than usual.
Of this evidence the judge observed (p. 39 C-D):
“You may think, members of the jury that evidence from a normally curious neighbour is the sort of evidence which has a very great ring of truth about it and of accuracy since she was out to have a look at who was visiting next door.”
At p. 40 D-E the judge said:
“Mrs Jones…..was not definite about her timings and she said that having seen the car at the farmhouse door at about 4 o’clock [she] looked again about half an hour later and saw it had gone.”
It is to be observed that Mrs Jones did not claim to have seen the vehicle arrive. It’s disappearance by about 4:30 is entirely consistent with other evidence of impressive reliability (to which we have already referred) that Carl arrived at Yew Tree Farm at around 4:20. The likely consequences of his arrival are that he was shot shortly afterwards and that the raiders then left the scene as quickly and, presumably, as inconspicuously, as possible.
It is against that background that the complaint in Ground 9 must be assessed. It is in these terms:
“The learned judge wrongly left open to the jury the possibility that both Mario Sabetta and Wendy Stagg had accurately identified the appellant and could therefore each support the accuracy of each other.”
We find it impossible to criticise the judge for leaving the evidence of the two witnesses to the jury. The fact that the jury might find it unlikely that the evidence of each could be correct was no sort of reason for not so doing. Miss Stagg’s times were not wholly inconsistent with Mrs Jones final observation. Mr Sabetta’s times, though very considerably earlier, did not place anyone actually at or inside the premises. We are not persuaded that the evidence of Sabetta and Miss Stagg was hopelessly incompatible. We do accept however that the identification evidence of each of these witnesses required detailed attention in the summing-up. It could not possibly have escaped the jury’s attention that these witnesses were referring to observations which on their times were some 75-80 minutes apart. When dealing with the issue of identification on p.125B, the judge gave Sabetta’s time and at p.126F he gave Miss Stagg’s.
Before turning to the treatment of Miss Stagg’s evidence in the summing-up (Ground 16) we have first to consider Ground 15 which makes, and we quote, “further serious criticism of Miss Stagg’s evidence arising out of unused witness statements”. The particulars which are then set out focus upon the fact that no other passing motorist observed the incident reported by Miss Stagg. The police traced, so we were told, a little over 100 witnesses who had passed the access drive to Yew Tree Farm between 4:20 and 5:00 that afternoon. No one, except for Miss Stagg referred to a plum coloured car. Although in her evidence she gave no further particulars of that vehicle in her first and sixth statements she described it as “an ordinary saloon and the Allegro or Maxi shape”. She also stated that she owned a Mini Clubman.
Eighteen years or more after the event we do not consider an investigation into whether Miss Stagg had ever observed the scene she described would have been a particularly fruitful exercise. Still less would that have been an approach to her evidence in 1979 with which a jury would have been sympathetic. Furthermore we remain entirely unpersuaded that within the mass of material relating to the observations of passers-by which we have been obliged to consider there is any evidence which raises a concern in our minds that she may not have observed the scene she described. Assessing the reliability of her recollection of the details of that scene and interpreting the significance of what she observed is an entirely different exercise. The question of whether the scene she observed had anything to do with the raid and the killing at Yew Tree Farm can only be answered by reference to the details of her recollection as to times, persons and vehicles and by an assessment of their reliability. If what she saw that afternoon was a scene connected with the raid then, undoubtedly, the incident has these two curious aspects; first; What were the raiders doing exposing themselves and certainly one of their vehicles to the view of passers-by within such a very short time of the killing? Why were they there at the roadside conversing? Second: It was the prosecution case that the plum coloured vehicle had nothing to do with the raid. Indeed one inference advanced by the respondent as “the obvious inference” was that the reversing blue estate vehicle had blocked the path of the plum coloured vehicle causing it to pause for a short while before continuing. Thus, so the argument runs, it is not surprising that none of the witnesses mentioned it. Miss Stagg’s statements were entirely silent about the occupancy of the plum coloured car. One inference from what she was saying in the statements was that the standing man was, or may have been, associated with that vehicle. We have already recorded that it was not until after the identification parade on the 23rd February 1979 in her consolidated statement of the same date that she first stated (a) there were two men in the blue car and (b) that the standing man was talking to them. Plainly, on the respondent’s hypothesis if the standing man was or may have been associated with the plum coloured car he was unconnected with the raid.
Equally, if he was not connected with that car whose car was it and why was it there? Miss Stagg’s evidence as to the occupancy of the plum coloured car was as follows:
“Q. Did you see anyone in the plum coloured car ?
A. I didn’t notice anybody in the plum coloured car.”
We refer next to the statements of just five of the witnesses to whose recollections our attention was particularly drawn. Mrs Heary in her statement of the 22nd September 1978 spoke of seeing shortly after 4:15pm a boy on a bicycle whom she took to be Carl. In her next statement on the 28th September 1978 she spoke of what she had observed after overtaking the boy and further down Lawnswood Road towards Yew Tree Farm. This she timed in her statement of the 29th October 1978 at 4:20 pm, adding “I am sure of this because I had an appointment to see the doctor at Kinver at 4:30 pm” As she drove towards the farm she, and we quote, remembered “seeing a red or brown mini facing towards Yew Tree Farm parked with 2 occupants a man and a woman. The male was 30-40, average build, sharp features, dark brown hair, general appearance tidy…..they appeared to be reading either a map or a newspaper. The car was parked approximately 50 yards from the junction of the A449….I have seen a similar car, parked on previous occasions”
We pause there to make it clear that in her statement of the 29th October 1978 she made it clear that this vehicle was parked on the Wordsley side of the entrance to Yew Tree Farm and some 20 yards beyond it. The same side, in other words, as Miss Stagg’s plum coloured vehicle, although Mrs Heary’s car was further away from the access drive.
Her account in the statement of the 28th September continues to this effect: almost immediately after overtaking the stationary mini she noticed the rear end of a vehicle which she took to be an estate and she believed to be a light colour, possibly blue. She did not see the front of the car nor did she notice whether it was occupied. This vehicle (she said in her statement of the 29th October 1978) was on the rough track “just a couple of yards in from Lawnswood Road”.
Mrs Barbara Walker made her statement on the 20th September. She passed the end of the Yew Tree Farm access drive at about 4:30 pm. She invariably looks up the drive as she passes it. That afternoon she saw nothing. However some 10-15 yards on the Wordsley side of the driveway and parked partly on the footpath was an orange coloured mini. She paid particular attention to this vehicle no one was inside it nor in the immediate vicinity. Mrs Walker made a return journey at about 4:50 pm. The orange mini had gone and she saw no one in the immediate vicinity of Yew Tree Farm.
Mr Nigel Millard in a statement dated the 7th October 1978 spoke of leaving work at about 4:30. The travelling time to Yew Tree Farm which he passed on his way home was about 12 minutes. He looked down the access drive and saw nothing. At “two minutes either side of 4:30″, Mr David Foreman was travelling along the A449 toward the junction with Lawnswood Road. He observed a dark blue Ford Escort estate in Lawnswood Road “creeping up to the junction”. The colour of the car was “hazy or bloomed….as though it had not been polished for some time”. He saw the car only momentarily and he thought there was only one occupant. He described the driver as about 45-50, round face, dark brown straight hair parted on the left — not long. Clean shaven and not wearing glasses. The driver was stocky”. Mr Foreman’s statement was dated the 21st September.
Finally at 4:40 pm (a time which he insisted was exact) Mr Ralph Cartwright was driving along the A449 and spotted a Mark 3 Cortina estate “just lighter than navy blue” approach the main road from Lawnswood Road at speed. The driver upon seeing Mr Cartwright’s vehicle had to break heavily. Mr Cartwright described the driver as “30-40, thick set with I think mousey coloured hair. I can’t remember what he was wearing or whether there was any passengers”. He was “positive” about the time because his journey ended only 400 yards from Lawnswood Road at Prestwood Hospital where he looked at the clock in the foyer and it was “just turned twenty minutes to 5″.
May Miss Stagg’s plum coloured car have been the mini seen by Mrs Heary and Mrs Walker? “Plum” is certainly not the colour attributed to it by those witnesses but it is a disturbing fact of life that mistakes as to colour are commonplace particularly if the observation is in bright sunlight. Although it is much too late now to test and assess what these witnesses had to say we have reached the firm conclusion that an assessment of Miss Stagg’s evidence ought properly to have been made in the context of the evidence which Mrs Walker and Mrs Heary were in a position to give. We do not overlook the fact that Miss Stagg’s own car was a Mini Clubman and had the car she seen been a Mini the likelihood is that she would have said so. We remain however somewhat troubled by the accounts given by Mrs Walker and Mrs Heary.
Ground 16 is in these terms:
“The evidence of Wendy Stagg was subject to the following serious weaknesses [seven are identified] which were not coherently presented to the jury so as to enable them to assess their cumulative effect.”
That at p.42 of the transcript, the judge was commending to the jury this witness and her evidence is really beyond argument. We repeat, however, at p.123A-B the judge said:
“….having regard to the circumstances in which the identifications were made, including that of Wendy Stagg and having regard, as you must in all cases as to the degree of certainty evinced by the witness making the identification, I would say to you that if that were the sole evidence against Robinson it would be unsafe to convict on that evidence alone.”
That the jury may have been receiving something of a mixed message from the judge is demonstrated by what he then went on to say at p.126E-F. Having dealt with the identification of Sabetta he continued:
“The third identification witness was Miss Wendy Stagg. Her evidence is clearly of more importance in that if you do accept it and think it is absolutely reliable it does put Robinson at the exit to Yew Tree Farm at about a quarter to five that afternoon with 2 or 3 people who were in the car that he was standing by.”
In truth, however, Miss Stagg on the 23rd February made no positive identification of Robinson. No less than five months had then passed since her sighting (for seconds only, and as she drove by) of the pedestrian standing with these two vehicles in Lawnswood Road. Although the judge’s summing-up of the evidence she gave cannot be faulted on the ground of accuracy, no cautionary word is included in it. Whatever claim the witness made, or may have appeared to make, at the trial for the reliability of her recognition it was precisely that confidence that the jury should have been warned against in the context of her evidence. The usual warning had been given earlier in the context of the Turnbull directions, but the judge’s overall approach to the evidence of Wendy Stagg meant that the very danger which the jury should have been warned about may have been enhanced rather than diminished. PRIVATE
Furthermore, having regard to some of the material which was not before the jury or the judge there are now additional grounds for concluding that the judge’s commendation was inappropriate. For example, her initial error as to the time, the passing of five months before she referred to anyone having been in the blue estate vehicle and before stating that the pedestrian spoke to an occupant of that car. There is the further question as to the significance of her evidence in the context of the information provided by Mrs Walker and Mrs Heary. A feature of her first statement which concerns us and which does not seem to have been emphasised to the jury, is the almost total lack of any descriptive detail of the pedestrian’s physical appearance. In that statement of the 21st September her recollection is confined to just two details “grey haired but not old”. Her evidence as to the colour of his hair became, at trial, something very different. Thus the only surviving particular of this witness’ original and singularly limited description which she gave the day following her observation, was “not old”. This striking weakness in her evidence should have been drawn to the jury’s attention and emphasised.
We have had to consider various aspects of the identification evidence relating to James Robinson. That evidence whether taken individually or collectively fell very far short of being strong. In our view Miss Stagg’s evidence may have been dangerously impressive to the jury. If she was right about Robinson, then he must have been wearing a wig. That important point however remained unexplored throughout the trial until inevitably, though belatedly, it was confronted for the first time in the summing-up. A basis for the inference was then advanced to the jury which either was not, or may not, have been well founded.
We have come to the conclusion that we must have regard to certain aspects of the identification evidence and certain observations upon it which were made by the judge, in determining the safety of Robinson’s conviction.
The Evidence of Helen Johnston
The relevant Grounds are 25, 26 29 and 29A.
This witness worked as a barmaid at the Dog and Partridge public house in Selly Oak. She was in effect an employee of Joseph Hickey who was plainly instrumental in her providing a statement to the police on the 9th December 1978 which implicated Molloy and Robinson in the murder. That was her second statement. Her first is dated the 9th November 1978. It is a short statement in which she only refers to seeing Tommy Vallance in the Dog and Partridge on Tuesday 19th September 1978. If she then had the information which she provided on 9th December she certainly did not give it. A statement of DI Ernest Robinson dated the 29th October 1980 reveals that on the 8th December 1978 that officer (then a Detective Sergeant in the Serious Crime Squad based at Bournville Lane police station in Birmingham) met Joseph Hickey who informed him of what Helen Johnston was able to tell the police. The police accordingly saw her the following day. That same day Joseph Hickey was himself at Wombourne police station. This is revealed by Police Action Message 13044 dated the 9th December 1978. Joseph Hickey at this stage was no doubt a concerned man. By the 8th December Molloy, Robinson and Vincent Hickey (Joseph Hickey’s nephew) were in custody. Vincent had been implicating Robinson who had been arrested on the 6th December thanks to information as to where he could be found which had been given to the police by Joseph Hickey on the morning of the 4th December 1978. Before his own release from custody on Sunday 3rd December Joseph Hickey had promised to identify “Jimmy” — the third man involved in the Chapel Farm robbery. Michael Hickey, who was also being sought by the police, on the 6th December decamped to Wisbech.
None of the material relating to Joseph Hickey’s activities was disclosed to those representing Robinson at the trial. It has been argued before us that had this material been available it would have been valuable ammunition with which to discredit Helen Johnston on the basis that she was simply doing Joseph Hickey’s bidding and that her statement, prompted by him, was designed to protect the Hickeys at the expense of Molloy and Robinson. We accept that regardless of the actual potential of this material the defence should have been informed of the circumstances in which Helen Johnston came to make her statement on the 9th December. Whether this was material which counsel for Robinson would have chosen to deploy at the trial is quite another matter. The undisclosed material was as consistent with Hickey setting out to ensure that Helen Johnston spoke the truth to the police as it was with Joseph Hickey manipulating her into lying for him. Challenging her credit with this material might well have strengthened her evidence. In the event the evidence she gave was less damaging than her statement. It is to her evidence that we now turn.
Having explained, by way of background, that James Robinson and Patrick Molloy became regular patrons of the Dog and Partridge public house and that she was on very good terms with them, Helen Johnston spoke of two incidents. The first incident, so she said, occurred about two or three weeks after the killing. As to the date, she was plainly wrong because Robinson was in custody from the 21st September until the 23rd October. On this occasion, a time when there was only one other customer in the bar, she overheard Molloy saying to Robinson (on what she said was “the Wednesday”): “Whatever you do whatever you say, say the gun went off accidentally”. Her evidence continued as follows:
Q. Did Robinson say anything?
A. No, No.
Q. What was he doing when Molloy was saying those words to him?
A. I couldn’t really hear, you know, what he said to Robinson[sic].
Q. …. Did he say anything did you see his lips moving or anything?
A. Yes. Yes, he was talking to Molloy, yes, but a customer ‘come in’ when I heard him say. I had to serve a customer and I couldn’t really hear every part properly.
She explained when cross-examined that Robinson had his back turned to her and her view of him, as he spoke to Molloy, was a sideways view. Earlier in examination in chief she had explained that the conversation the two men were having was, and we quote, “about the boy, you know, they was on about the paper boy”. She said she had heard Molloy speak those words, about it having being an accident, just once. As to the effect it had had on her she said that she had “kept on thinking about it for a long time …. for quite a few weeks after…” Asking whether she experienced any other effect she replied: “Well, a bit on the nervous side, you know”. Her evidence was challenged on behalf of both Molloy and Robinson. The basis of the challenge being that she had either misheard or misinterpreted what Molloy had said and on behalf of Robinson it was put that nothing of the sort had been said in Robinson’s presence: She stuck to her evidence.
Grounds 25 and 29A relate to this part of her evidence. Ground 25 is a complaint about the non-disclosure of Action Message No 15411 which reveals that in August 1979 she was telling the police adamantly that Angela Marshall had also heard what Molloy had said to Robinson in the Dog and Partridge. Angela Marshall was Martin Tierney’s girlfriend. She too had made a statement on 9th December and a further statement on the 20th March 1979. She made no reference in either to the conversation. A further complaint is that those statements were ‘X-rated’ and were therefore unseen by the defence. The Action Message 15411 also records that Angela Marshall had been re-interviewed and had heard no such conversation.
By reason of those non-disclosures, it is said that the defence were deprived of an opportunity to undermine Helen Johnston’s credibility on the basis of inconsistency. At trial she maintained that present in the bar at the time of this conversation, and in addition to herself, Molloy and Robinson was one other (male) customer. The Action Message 15411 of August 1979 contradicted that and her claim, as recorded in the Action Message, had in turn been contradicted by Angela Marshall when she was interviewed. We accept that had this material been used it would scarcely have enhanced Mrs Johnston’s credibility. Furthermore, on any objective assessment her claim to be a credible witness could scarcely be described as substantial because her evidence about this incident was in truth a very diluted version of her statement. We give but two examples: in her statement she described Molloy and Robinson at the time of their conversation as “very sick looking not normal and very worried”. In evidence when counsel asked how they were behaving she replied “normally”. More significantly, in her statement she said that “Pat kept repeating” the words she attributed to him. She then added: “He said this about five or six times”. In evidence she stated that he said it “just once”. Unlike the ‘Angela Marshall point’, those were not of course the sort of inconsistencies which the defence could sensibly have confronted her with in cross-examination. They do however cast a relevant light upon an objective assessment of her credibility. As of today we accept that her credibility rating is arguably nil. Her most recent conviction (in 1990) related to offences in 1988 which involved deceiving an 84 year old blind man into parting with his life savings of many thousands of pounds.
Ground 29A is in these terms:
“The learned judge failed to direct the jury that the evidence about the Wednesday incident/ accident suggestion of Pat Molloy to James Robinson did not constitute admissible evidence against this appellant. There was no evidential basis for finding any response by Robinson which could have amounted to assent to or adoption of, the suggestion”.
In examination-in-chief Robinson denied that the conversation described by Helen Johnston had ever taken place.
To what extent if any was Helen Johnston’s evidence, evidence against James Robinson assuming that what she had said was accepted as true? It appears that this question was not addressed at the trial. Having regard to the totality of her evidence of the conversation she was clearly giving evidence, as against both, that the two of them were talking about Carl Bridgewater. It is submitted by James Robinson’s counsel that, in the absence of any evidence of what Robinson had said (if anything) in reply to Molloy’s suggestion, Molloy’s comment could not be treated as evidence against Robinson. In our view, this evidence was admissible irrespective of the truth of the factual implications of what Molloy had said. It was relevant and admissible as against each (there being not the slightest suggestion that Robinson had not, or may not have, heard what Molloy had said) because this was evidence that two men, who knew each other well, were talking about the newspaper boy and during that conversation one (Molloy) had spoken those words. If thereafter, as he did, Robinson denied that the conversation had taken place then, in our judgment, if the jury, nonetheless accepted the evidence they were entitled to ask themselves why Robinson was denying that the conversation had occurred and, one inference they were entitled to draw was that he was denying it because Molloy had spoken those words and the conversation was a conversation between two participants in the raid on Yew Tree Farm. During the summing-up the judge reminded the jury of this evidence having prefaced his remarks on Helen Johnston and other witnesses with this comment:
“….I return now to the general evidence concerning the number of witnesses who say that they heard Robinson at various times say things which would indicated directly or indirectly that he was at Yew Tree Farm”
He then accurately summarised the witness evidence and Robinson’s evidence, which was a denial that there had been any such conversation between him and Molloy, and left the matter as a simple issue of fact to the jury. It is urged upon us that the judge should have raised the issue whether, absent evidence of a reply from Robinson acknowledging Molloy’s comment, this was evidence against Robinson. We consider that such a direction would have mystified the jury and would not have focused their attention on the issue as presented by the prosecution and counsel for James Robinson. The judge went on to say, with impeccable accuracy:
“We did not of course hear any denial or evidence from Molloy on the point because he chose not to give evidence in the case”.
There was no misdirection, in our opinion, in this part of the summing-up.
Helen Johnston’s evidence concerning the second incident was to this effect: On a Saturday evening in November Helen Johnston was in the Dog and Partridge with Sean and Martin Tierney and Angela Marshall (Sean Tierney’s girlfriend). Jimmy Robinson and Carol Bradbury were with them and had an argument about Robinson returning to his wife at Tamworth. During the exchange Robinson slapped Carol Bradbury’s face. She said to Robinson that she was going to shop him over the paper boy. Her evidence continued as follows:
Q. How long were they together after that in the public house that evening?
A. Well they wasn’t too long after the argument, they went to another pub.
Q. When she said that to Jimmy Robinson did he say anything or do anything that you saw?
A. They walked out you know.
Q. They walked out?
A. Yes, he walked out and she walked after him.
Q. Was that immediately after she had said it or some time after?
A. No. It was only a few minutes, five minutes after.
In cross-examination it was put to the witness on behalf of Robinson that she was quite mistaken about anything like that having been said in Robinson’s presence. Helen Johnston once again stuck to her evidence. In his summing-up the judge reminded the jury of the evidence relating to the second incident immediately after he had dealt with the first. Ground 29 relates to this evidence. It is a complaint that the judge wrongly admitted this evidence. The Crown do not accept that. It correctly points out that the judge was not in error because this incident was described in both Helen Johnston’s and Sean Tierney’s statements. The judge’s ruling was based upon that material. Tierney however did not come up to proof. What appeared in his statement, namely that Robinson had reacted to Carol Bradbury’s remark by saying “Shush” and everything had then gone quiet, was enough to justify admitting the evidence. Helen Johnston gave evidence before Sean Tierney and the evidence of what Carol Bradbury had said and it’s aftermath was, in the event, confined to that given by Helen Johnston. In those circumstances, it is perhaps not surprising that a further and more significant point take before this court was that in the absence of Sean Tierney’s evidence Helen Johnston’s evidence, standing alone, was simply not relevant to the case against Robinson and the jury should have been so directed. Carol Bradbury made this allegation during the course of an argument. Evidence of her having made the allegation was not evidence of the truth of the implied facts asserted in it. Robinson neither adopted it nor did he conduct himself in a manner from which the truth of what she had said was capable of being inferred. What he did was to walk out. That if anything was capable of permitting the contrary inference. We accordingly uphold this submission. The Crown too concedes that it must be correct. In the absence of an appropriate and firm direction, this was a particularly damaging piece of evidence which, additionally, was capable of improperly colouring the jury’s view of Carol Bradbury’s absence from the witness box as an alibi witness for Robinson. Thus the jury were misdirected as to the evidential significance of this not unimportant piece of evidence. The Crown further and properly accept that it is possible that the misdirection may have had some bearing upon the jury’s verdict in the case of Robinson.
So far as Helen Johnston is concerned the position is therefore this: assessing her credibility with the benefit of hindsight she can now only be regarded as a person whose word is of little, if any, value.
The Evidence of Dundas-Ure, Ritter and Bryant
Generally
At an early stage in his summing-up the judge gave the jury a clear and impeccable warning about the need to approach the prisoners’ evidence with the greatest care and caution. He said this (pp 27A-28F):
“However, whilst I say that the warning I have given you about acting on the evidence of an accomplice is of limited application to this case, the reason I have given it you and stress it is because it should also be kept in mind when considering the evidence of a number of witnesses, who if you believe them are extremely important as witnesses against one or other of the accused, and I refer in particular to the prisoners who gave evidence of conversations they had with one or other of the accused, or conversations they overheard. Since each of those prisoners is a person who has committed crime it would be right for you for that reason alone to examine their evidence with great care and to appreciate the dangers inherent in it. But it goes further than that, because a person who was actually serving a sentence at the time he says overheard or had some conversation might well have some improper motive which would lead him to fabricate or falsify his evidence. He may have been seeking to ingratiate himself with the prison authorities, or hoping that by telling the authorities of such conversations he might more readily and more quickly be granted parole, or there might be other reasons simply arising from the strains which might occur in prison life. You heard and saw something of the sort of stresses which build up in prison life when Robinson at the end of one day gave a somewhat dramatic outburst, pointing to one or more of his co-accused in the dock, and how he said that his fellow prisoners had regarded him with loathing. You have to consider as well the possibility that a number of fellow prisoners were in some way ganging up together in order to give evidence against a fellow prisoner that they disliked, whether it be against Robinson or any others. Although such fellow prisoners are in no way accomplices of the accused it is right you should regard their evidence in the same way as I have directed you to regard the evidence given by accomplices. That is to say, if you do not think the evidence of those people is apparently to be believed then you should reject it entirely. If you do believe it, and think it has the ring of truth and are disposed to accept it and act upon it as being true, then you must still bear in mind the danger of acting on it unless there is evidence from some independent source which tends to show that the defendant against whom the evidence is given is guilty of the offence to which that evidence relates and I extend that warning not only to the prisoners, but to any other witnesses whom you may think had some possible motive for giving evidence hostile to one or other of the accused for some improper motive. So there you are, members of the jury. If you do not believe the evidence of those sort of witnesses you reject it in any event. If you do believe it, bear in mind my warning and look for other evidence. You should not convict any of the accused entirely on such evidence unless there is supporting evidence from other independent sources”.
JAMES DUNDAS-URE
James Dundas-Ure was a regular patron of the California public house. He spoke in evidence about a particular visit shortly after he had read about the killing of Carl Bridgewater. On this occasion he saw James Robinson and Patrick Molloy. The witness was accompanied by Patricia Copus with whom he was then living. The judge summed-up Dundas-Ure’s evidence of what occurred in these terms:
“I said to Jimmy, I’ve seen Jimmy Smith and he’s told me you have been pulled for the murder’. Molloy asked what I was on about. I said to Robinson, “Was it down to you?” and he moved his hand, and he demonstrated in the witness box how he had done it, and he said that Robinson said, “It was an accident”. He said that when that conversation took place Jimmy was sat next to him and Pat was next to him. When Jimmy said it was an accident he said that he carried on the conversation and later on, “I said to Jimmy something again about Carl Bridgewater, and I said, ‘So it’s down to you?’ and he said again it was an accident. I said, ‘Fucking hell, you will get 30 years for that’, and he said again it was an accident.”
Robinson agreed he had had a conversation that took place with Dundas-Ure in the California, but he said Dundas-Ure had embroidered it and that really what happened was that Dundas-Ure said, “Whoever did that murder will get 30 years”, and that Robinson said he did not say it was an accident at all during the course of that conversation.
Patricia Copus’ evidence was as follows:
Q. When you arrived there was there an occasion when you had a drink with Jimmy Robinson and “Old Pat”?
A. Yes.
Q. I want to ask you about this, Mrs Copus. Did you hear any conversation which you thought had something to do with the death of Carl Bridgewater?
A. I didn’t hear any of the conversation. All I heard was my Jimmy say something to Jimmy Robinson.
Q. What did you hear him say?
A. “Jimmy, you could get 30 years for that”.
Q. When that was said did you listen any further to the conversation?
A. Jimmy Robinson turned round to my Jimmy and says: “Just forget what I said”, and they just carried on talking normally.
Under cross-examination on behalf of James Robinson ,she said:
Q. How long were you sitting listening to this conversation?
A. We arrived at the California Pub between half past 8 and 9 o’clock. It’s about half-past-9. About half an hour.
Q. How long were your Jimmy and Robinson talking to each other in your presence?
A. About half-an-hour.
Q. And you never heard any words said about Carl Robinson[sic] or Yew Tree Farm, did you?
A. No.
Thus the significance of her evidence depended entirely on the true context of the conversation in which those remarks were made. For the evidence as to the context the prosecution were dependant upon the evidence of Dundas-Ure.
On a later occasion Dundas-Ure and Robinson met again. Each was then remanded at Winson Green Prison. Dundas-Ure gave evidence of various conversations he had with Robinson in the prison. The judge summarised the position as follows:
“Dundas-Ure told you of another occasion later on when he, Dundas-Ure had been arrested for some offence and later on was remanded to Winson Green Prison, where in due course Jimmy Robinson arrived and remained waiting his trial. Dundas-Ure told you of two conversations that he said took place with Robinson there about the Carl Bridgewater murder. He said, “After Molloy had been charged with murder I had a conversation with Robinson about eight o’clock in the morning when we were going upstairs, and he said, ‘They charged Paddy. They will charge me now’. We had quite a few other conversations. I was seeing the police meantime and relaying what these conversations were to them almost every day”. He said, “Robinson spoke again of Paddy Molloy squealing and said, ‘They are feeding him on fucking birdseed, budgie seed’, and he said he would just like to kill him, but not just kill him, but to pull his ribs out one by one from under his skin”.
Dundas-Ure said, “If it was an accident…….”, remembering what he had said in the pub, “Why didn’t you tell them?” and Robinson replied, “It’s too late for that now because nobody will believe all that now”. As to that piece of evidence it was suggested to Dundas-Ure on Robinson’s behalf that he had fabricated it and that nothing of the sort like that had been said by Robinson, and that what had happened was that Dundas-Ure was putting a friend of his in for murder by giving this evidence in the hope that he, Dundas-Ure, would get his sentence reduced on appeal, and that he had had a sentence of eighteen months plus six months added on, and his appeal merely concerned the six months added on, which was taken off by the Court of Appeal, taking into account the fact that he had assisted the police. Of course Dundas-Ure, whilst agreeing that he had used his assistance to the police to have a reduction in his sentence denied that he had made up the conversation and said that it was indeed true”.
In November 1978 Dundas-Ure was himself being sought by the police. On 25th November he was arrested and eventually remanded in custody on charges of living on the earnings of prostitution, burglary and dishonest handling. On the 19th January 1979 Detective Chief Superintendent Stewart informed the office of the Director of Public Prosecution that there was an informant who had been talking to Robinson in prison. The message ends “He will not make a statement or give evidence unless someone puts in a good word for him at trial”. That message is TM 15121 and Ground 42 is a complaint that the Crown wrongly failed to disclose it to the defence at the trial. It is accepted that the document was not disclosed. Although the information contained therein should have been disclosed we are sure that by reason of the omission the defence were not disadvantaged in their attack upon Dundas-Ure’s credibility. Before commenting further we will complete the narrative. Dundas-Ure made a witness statement on the 23rd January 1979.
When he appeared before the Crown Court in Birmingham on 2nd February 1979 the assistance which he had given the police was drawn to the attention of the court in the usual way. He was sentenced to a total of 2 years imprisonment comprising a sentence of 18 months and a consecutive sentence of 6 months. Robinson was charged with murder on the 5th February. A few months later on 8th October (the day the trial of these appellants commenced in the Crown Court at Stafford) Dundas-Ure’s appeal against sentence, again supported by confirmation of his assistance to the police, was allowed and the sentence was reduced by 6 months thus enabling his release from prison prior to giving evidence at the trial. At the trial he was predictably and effectively cross-examined on his motivation for providing the information which implicated Robinson. He accepted that his motivation for proceeding as he did was to improve his prospects of a lenient sentence.
The all important question was not whether there existed any oblique motive behind his co-operation (in this class of evidence the absence of such a motive would be quite exceptional) but whether, thus motivated, he had lied or told the truth. The judge’s directions to the jury amply catered for the sort of dangers which are inherent in this class of evidence.
Ground 42A is in these terms:
“The Crown failed to disclose to the appellant information that the witness Dundas-Ure may well have first told the police that one John Burkett, as well as the appellant was involved in the Yew Tree Farm murder.”
This ground is founded upon a paragraph in a police report written by DC Supt Stewart dated the 19th November 1979 concerning anticipated claimants for financial reward following the conviction of the appellants.
The relevant passage falls far short of stating in terms that Dundas-Ure had named John Burkett as a participant in the Yew Tree Farm raid.
The Respondent’s answer to this claim of non-disclosure is that the information is based upon what appears in Dundas-Ure’s witness statement dated the 23rd January 1979. On page 4 he states:
“I decided over the course of the next few weeks to tell the police what I knew and before Robinson was arrested I had seen the police and told them that Jimmy Robinson, John Burkett and Patrick Molloy were committing crime – robberies and the murder.”
Thus the defence at the trial were put on notice of what Dundas-Ure had said and were free to have pursued this somewhat equivocal statement had they so wished. Ground 42A is accordingly without substance. As we have not been persuaded that the complaints contained in Ground 42 and 42A have any material bearing on the safety of James Robinson’s conviction it must follow that the significance of Dundas-Ure’s evidence today remains as it was in 1978. Having regard to the necessary caution with which it had, and still has, to be treated and the judge’s direction relating to the need for corroboration, our inevitable conclusion is that this evidence does nothing to allay the various concerns and reservations which we have already expressed in this judgment about the safety of James Robinson’s conviction.
MERVYN RITTER
The relevant Grounds are 37-41 inclusive.
Earlier in this judgment we outlined the prosecution’s case against each appellant. In the summary relating to James Robinson we referred to the evidence of Mervyn Ritter who claimed that on various occasions Robinson had made admissions to him. Later in the judgment, when we were considering the insufficiency of the case against Michael Hickey (against whom Ritter had also given evidence), we reviewed the current assessment of Ritter’s credibility aspects of which were unknown to the jury in 1979.
It is perfectly true that counsel for Robinson had to tread a narrow path in cross-examining witnesses such as Ritter in order not to expose Robinson to the risk of being cross-examined about his own character and criminal record. However we have no doubt that had much of the material which is now before us been available to the defence at the trial counsel would have been considerably better equipped to undermine Ritter’s credibility without exposing Robinson to the risk to which we have referred.
An assessment of Ritter made by the security officer of one prison at which he was detained in the early 1970s was in these terms: “His stock in trade is deception” and “just about the best con man I’ve met yet…any commendable action is taken to further his own ends”. In 1978 another assessment of him noted that he was “highly skilled at manipulation”. There is an agreed schedule of such assessments all to much the same effect. Quite apart from the features of his character and record which point unerringly to his huge potential for unreliability there are more specific concerns about his evidence each of which was frankly acknowledged by the Crown to be a concern of substance.
Ritter was transferred to the security wing (D3) of Winson Green Prison on the 31st March 1979. Following that transfer he met Robinson. The speed of events and of his accumulation of information relevant to the case against Robinson is best illustrated by the fact that on the 5th April 1979 he was making a 7 page statement to the police at Winson Green Prison and on the 9th April 1979 he was making a 14 page statement at Shewsbury Prison. In that statement he explained his transfer to D3 at Winson Green on the basis of “some internal problems”. At trial he said it was because of “some trouble” and in the 1988 Appeal he said that it was because he had attacked another inmate. His prison record, a detailed and all embracing document, reveals that against the date the 31st March 1979 is recorded:
“Remove from kitchen to D3
Security Offs Inst”.
The next entry (dated the 5th April) records “Appn to Security Officer to see police on Carl Bridgewater murder enquiry as soon as possible. Visit arranged for 2:0 pm today”. It is unlikely in our judgment that Ritter’s transfer to D3 was purely coincidental. During the afternoon of the 5th April 1979 Ritter made his first witness statement. In his second (9th April) and at trial he claimed there were two developments involving the appellant during the evening of 5th April: first, he admitted he had shot Carl but that it was an accident; second, he provided Ritter with the addresses of Carol Bradbury and his solicitor. Undisclosed to the defence at trial was Message TM 15330 dated the 6th April 1979 which makes no reference to the confession but does record that the two men had met that evening (5th April), that Robinson had provided the two addresses and that Ritter had reported the conversation to Prison Officer Reid. Further questions arise in relation to TM 15328 dated the 5th April 1979 and timed at 2:15 pm. This is a message from DC Maclean to DI Wordley which records that there had that day been a delay in seeing Ritter and that a prison officer had informed Mr Maclean that Robinson had told Ritter that he was responsible for shooting Carl Bridgewater. The message ends:
“I am about to see Ritter who will make a statement.”
The period in which the statement of the 5th April was taken ended at 5:05 pm. In the statement Ritter attributes no confession to Robinson. It is the statement of the 9th April which records Robinson’s confession and, as we have already observed, in that statement Ritter speaks of the confession being made in the early evening of 5th April. There may have been explanations for these very obvious and very suspicious discrepancies highlighted by TM 15330 and TM 15328. What matters today is that by reason of this material not having been disclosed the defence were deprived of information of considerable potential relevance to the one and only issue arising on Ritter’s evidence namely his credibility. We consider that in the light of the material now available no weight at all should be attached to his evidence in so far as it concerns the case against James Robinson. In reaching that conclusion we have well in mind that since the trial Ritter has given accounts of his association with Robinson in Winson Green which are inconsistent with his earlier versions: in a statement he made in January 1992 he claimed (for the first time) that out of sheer indignation he had actually assaulted Robinson for “bragging about killing the newspaper boy”.
PETER BRYANT
Another serving prisoner who encountered the Hickeys and Robinson in Winson Green Prison gave evidence touching all three of them. Earlier in this judgment we have outlined the evidence he gave. The complaints of substance (Grounds 43, 43A and 44) touching Bryant’s evidence focus upon the non-disclosure of material which was relevant to Bryant’s credibility.
Bryant had been detained in custody at Winson Green Prison since about October 1978. Following an attempted escape in late November 1978 he was required to exercise in D Wing, the security wing. It was in this way that he met the Hickeys and James Robinson and it was on such occasions, so he later claimed, that he acquired the information he was to give in evidence.
On 14th March 1979 Bryant was sentenced to 2 years imprisonment. Thereafter on 27th March he was visited in prison by Detective Constable Bache and Kindon. The purpose of their visit, and possibly a further visit on or about 22nd April 1979, was to clear up certain other offences. The result of that exercise is reflected in the following paragraph of a police report dated 22nd April:
“As stated [another prisoner] and Bryant have been interviewed in HMP Winson Green and between them they have admitted numerous offences of unauthorised taking of motor vehicles, 21 offences of burglary and 9 offences of robbery …. These matters have been written off to these men under “Home Office Instructions”.
It is unclear from this paragraph whether all or only some of those offences were ‘accepted’ by Bryant. Whatever he accepted however was not disclosed to the defence. Nor were the defence informed that he was not prosecuted for any of the offences. No one was able to enlighten us as to the “Home Office Instructions”. We perhaps should add that all the jury knew of Bryant’s record was elicited by the prosecution in his examination-in-chief. The jury heard that on the 14th March 1979 he had been sentenced to 2 years imprisonment for robbery involving nearly £1600 in cash. His antecedents reveal that there were 2 robberies and that he was sentenced to 2 years concurrent on each. There were other short, concurrent sentences for offences of dishonesty and three offences were taken into consideration. He had also appeared before the Crown Court for offences of dishonesty in June 1976, December 1977 and January 1979. The jury did not therefore, by any means, have the full picture of his past criminality. Although it did emerge that he had been in custody since October 1978 “in connection with other matters as well”. The full details could obviously have been elicited in cross-examination but that course would have carried the attendant risk relating to Robinson’s own record.
It is to be noticed that Bryant did not reveal to the Detective Constables any of the information he had by then acquired (if his evidence was true) relating to the Hickeys and to Robinson. The first documented indication that Bryant may have information is the TM message 15377 dated the 3rd June 1979 to DCI Wood. The message is to the effect that another prisoner had said that Bryant would be,and we quote “worth speaking to as he has been exercising with Robinson continually since Robinson’s arrest. Please see Bryant and ascertain from him any useful information”.
DS Tooth interviewed Bryant on the 13th June and the 18th June. Notes were taken of what Bryant had to say. These notes were not disclosed. Ground 43 is a complaint about their non-disclosure. The complaint is justified because they not only preceded the making of Bryant’s witness statement on the 9th July they also reveal that Bryant’s recollections were somewhat uncertain. In short these notes were clearly relevant to the issue of Bryant’s credibility. The first two paragraphs of DS Tooth’s notes on the 13th June are in these terms:
“At 11.30 am 13/6/79 DS Tooth and DC Whearwall saw Bryant at Winson Green Prison. He told us that he had been exercising, most days with Robinson and sometimes with Michael and Vincent Hickey, since they were made Cat A in December. Michael and Vincent never said much to him at all, the only time they mentioned the murder was factual matters such as the serving of papers and appearing at Court. Certainly nothing contentious arose out of their conversations. Jimmy Robinson, however, was more talkative. Bryant said he needed some time to think out what was said, mainly to separate what Robinson said which was quoted from out of the depositions and that which was quoted from what Robinson himself knew. He did remember with a little difficulty several points which appear to be of interest”.
The “several points” involved three basic points: first, that they went to the Farm in a Cortina and a van; second, that they knew about the Farm because one of them had read about it in a brochure when the farm had been offered for sale and third, he accurately outlined Robinson’s alibi. Given Bryant’s acknowledged difficulty in distinguishing between Robinson’s quotations and references to the case papers and what Robinson actually knew himself, these points were considerably less than devastating. Furthermore, the second point is wrong because a statement made by a Mr Folkes on the 24th November 1988 clearly demonstrates that Yew Tree Farm was not advertised for sale prior to March 1979 or thereabouts. The interview notes conclude with the observation that arrangements had been made to see Bryant again on Monday the 18th June. This they did. The later notes contain further details which we do not recite because their most significant feature is the absence of any reference to what occurred inside the farmhouse. Such details did however appear in the statement of the 9th July and, with some variation, they were repeated at the trial. In his statement he said this:
“Jimmy talked to me and Vinney one day about when they were inside the farm and when the gun went off. He did not say he fired the gun. He said Molloy came downstairs and when he came in the room he stood trying to see where the body was and Jimmy said he himself was saying it was an accident, it was an accident.”
At trial he said this:
Q. What did Robinson tell you had happened with Molloy after Molloy came downstairs looking for the body?
A. Jimmy was supposed to be standing there saying “I’m sorry, I’m sorry. It was an accident. It was an accident. It was an accident”
Q. [Mr Justice Drake] who was telling you this?
A. Jimmy and Vinney.
Q. Were they saying that Jimmy was there saying it was an accident… or that this was someone else who was saying?
A. Someone else saying ………………..
Q. Did they say who this someone else was?
A. No.
Having identified this part of Bryant’s evidence counsel for Robinson put this question in cross-examination:
Q. They were describing, were they not what was contained in the papers and telling you that was what was being said against them?
A. May be so. I don’t know. I am only saying what I have heard.
Although Bryant’s evidence was a considerably diluted version of his statement the fact remains that the incident is not referred to at all in any of DS Tooth’s notes. That omission combined with Bryant’s difficulty in recollection which is recorded in the passage from the notes of the 13th June to which we have referred, could have been very effectively deployed in a cross-examination designed to undermine Bryant’s credibility.
Although we have not referred to every criticism which has been made of Bryant’s evidence we accept that had there been disclosure of the various categories of information which we have identified, the potential for further undermining Bryant’s credibility was considerable. In those circumstances we have come to the conclusion that it would be inappropriate to attach any weight to his evidence.
JAMES ROBINSON’S FIREARM (EXHIBIT 25)
Grounds 31 to 36 relate to the sawn-off shotgun belonging to James Robinson which, with his assistance, the police recovered from waste ground at the junction of Barnes Hill Road and Middle Acre Road in the early hours of the 7th December. Later that morning Robinson admitted that he had carried the shotgun during the Chapel Farm robbery on the 30th November. It was common ground at the trial that Anwar Mohammed (known as `Spider’ Mohammed) had, in the presence of a man named Kane, supplied Robinson with the firearm in late August or early September 1978. Mohammed and Kane were prosecution witnesses. Mohammed’s evidence that the barrel of Exhibit 25 had not been sawn off at the time he supplied Robinson with the firearm was challenged and Robinson later testified that at the time he acquired the shotgun the barrel had already been shortened. When challenged on that point Mohammed was also asked about the stock which had also at some time been shortened to create what was termed a ‘pistol grip’. The Crown expert, Mr Warlow, giving evidence in late 1979, said that the shortening of the stock did not appear to have been a recent event: The wood was discoloured. When Mohammed was cross-examined about the shortened stock he said that it had been in that state when he acquired the weapon. He was cross-examined to some considerable effect upon that answer. There would have been little point in shortening the stock without shortening the barrel. Merely to shorten the stock would have adversely affected the balance of the weapon. Mohammed gave no explanation for his evidence. It is clear that any jury would have been unimpressed by Mohammed’s insistence that the barrel had been it’s original length while the weapon was in his possession.
It is said (Ground 32) on behalf of Robinson that a more effective attack could have been made on Mohammed’s credibility. First, our attention was invited to a disclosed statement of Mohammed dated the 3rd January 1979 in which he stated that both the barrel and the butt were full length at the time of Robinson’s transaction. That of course is inconsistent with his evidence. It is suggested that as he had given evidence immediately after Mr Warlow he had trimmed what he said in the witness box about the stock to accord with the expert’s evidence. Whether or not this is correct, the point at issue was of little, if any, significance: It was common ground that Mohammed had supplied Exhibit 25 and that Robinson had acquired it for criminal purposes. Although Mohammed’s statement could have been deployed in cross-examination we are sure that counsel could hardly have improved upon the impact of the challenge to this evidence which he did mount.
A further complaint (Ground 33) is that the defence were not told at the trial that Mohammed was not to be prosecuted for any offence relating to this firearm transaction. At the time of the trial Kane and Mohammed stood charged but thereafter both were merely cautioned. This was first disclosed to the appellants in a letter from the Crown Prosecution Service in February 1997. An earlier letter (19th December 1996) referred to a report written by D Supt Stewart in November 1979 in which he stated that no action had been taken against Mohammed “as he was required as a material witness in the proceedings”. Even if it can properly be inferred from this Report that Mohammed knew (or may have known) that prior to giving his evidence he was not going to be proceeded against, the challenge to Mohammed’s evidence was so effective, so limited and touched such a peripheral issue, any suggestion that the undisclosed information would have (or may have) affected the jury’s assessment of the case against James Robinson is wholly fanciful. For precisely the same reasons we have reached the same conclusion in respect of the further complaint (Ground 34) that the prosecution did not disclose prior to the trial either that Mohammed had been detained in police custody for some two days in December 1978 prior to making a witness statement, or that during that period he had been given an opportunity to speak to Kane, who was also in custody.
Ground 31 is in these terms:
“The Crown conceded in the 1988/89 appeal that the Appellant’s gun (Exhibit 25), was “probably not” the fatal weapon. The consequences of this concession affect the admissibility of substantial parts of the Appellant’s police interviews, much of his cross-examination by Crown counsel the evidence about his gun from the prosecution witnesses Sabetta, Mohammed, Kane, Roberts, Helen Johnston and Susan Bennett and relevant references to the police interviews of Molloy and Vincent Hickey.”
The short answer to the complaint is that it confuses three relevant but distinct issues. There was an issue as to who had access to a shotgun both immediately prior to and after the killing. There was an issue as to whether the firearm to which Robinson had access, Exhibit 25, was the firearm which had been used to kill Carl Bridgewater. There was the further issue as to whether, regardless of the use to which it had been put, Exhibit 25 (Robinson’s firearm) had been taken to Yew Tree Farm on the occasion of the raid. It by no means follows from the Crown’s concession in 1988 that Exhibit 25 had not been taken to Yew Tree Farm on the 19th September. The aspects of evidence itemised in Ground 31 were undoubtedly admissible in order to establish Robinson’s access to a shotgun and what happened to that firearm between the 19th September and the 7th December 1978 notwithstanding the fact that there was no scientific evidence which established, or even tended to establish, that Exhibit 25 was the murder weapon.
Ground 35 relates to the failure of the defence at trial to make use of material contained in the unedited and disclosed statement of Timothy Roberts. It is said that in that statement there was material which might have accounted for Roberts exaggerating in his evidence that he had actually seen part of an object which Robinson was carrying under his anorak on an occasion in the California public house. This ground was not pursued before us. The material in the statement which could have been deployed in the cross-examination of Roberts would have been highly prejudicial to Robinson. Furthermore, Roberts’ evidence could scarcely be regarded as significant because it was common ground that Robinson owned a sawn off shotgun for criminal purposes.
Ground 36 concerns the summing up. At 131 A-E the judge said this:
“It is said as part of his defence that he would never have disclosed the hiding place to the police if the gun had been used at Yew Tree Farm. You will have to consider that, although we know, of course, that a shotgun cannot be married up to a particular spent cartridge or the wadding or shot from a cartridge, and you will have to consider whether Robinson, apparently with some liking for a gun, might have known about that fact. In his final speech to you Mr Draycott made a very strong point of this fact, that Robinson had led the police to the place where Exhibit 25 was hidden, and he suggested that there was only one conceivable and possible explanation for Robinson doing that, and that was namely that Exhibit 25 had not been used at Yew Tree Farm in order for Robinson to have produced the gun because he was innocent of the Yew Tree Farm murder[sic]. Mr Draycott invited you to consider whether anyone could think of any possible reason for Robinson to produce the gun to the police other than that matter.[sic]“
At 131 G-132D the judge continued:
“As I have said to you, may it not have been in Robinson’s knowledge that Exhibit 25 could not be married up merely to the shot and wadding found at the farm, and if Vincent or others had already told the police that Robinson had a gun, and that the police believed that Robinson had a gun somewhere, would it not be even more damaging to Robinson if he refused to produce the gun than if he produced it and said, “Well, there it is, but it wasn’t used at Yew Tree Farm”. Those are merely thoughts, and if you believe they are not worthy of consideration then, Members of the Jury, ignore them and think about the matter yourselves. My purpose, as I have already told you, is merely to try to assist you and to make suggestions for your consideration. You alone make the decisions upon them. It is of course the fact, as we heard from Mr Warlow, the firearms expert, it is not possible to say whether or not the contents of the cartridge, the wadding and shot that killed Carl were fired from Exhibit 25. What we do have is the evidence of Mario Sabetta, to which I have referred, that the gun he saw being taken across the road, and he put it no higher, and I quote his exact words in evidence, said could be “about the same” as Exhibit 25 [sic]“.
Ground 36 is in these terms:
“The learned judge engaged in speculative and prejudicial comment at pp 131B and 131G – 132B in postulating without any evidential basis, that the Appellant “might have known…” that neither spent shotgun cartridges nor shot and wadding can be married up to any particular weapon; thus speculating that he may have felt safe in taking the police to his gun Exhibit 2.”
The 1988/89 concession was a highly important one. Whether Exhibit 25 was the murder weapon was a live issue at the trial. Exhibit 25 was Robinson’s property. If it was the murder weapon that was a further potential indicator that Robinson not only participated in the raid but was Carl’s killer. It is not therefore surprising that defence counsel attached considerable importance to the fact that Robinson surrendered Exhibit 25 to the police. The judge, in the passages we have cited, was drawing the jury’s attention to factors which undoubtedly tended to neutralise counsel’s argument. Had the concession been made in 1979 neither counsels point nor the judge’s reflections would have been canvassed with the jury in the same way: exhibit 25 could not have served the purpose, contended for by the Crown, of connecting Robinson via the killing to the raid. In short, no counter argument to that advanced on behalf of Robinson at the trial (namely that he produced the firearm because it was not the murder weapon) is now sustainable having regard to the concession that Exhibit 25 was “probably not” the weapon which had been used to kill Carl Bridgewater.
Ground 36 however involves criticisms which are quite independent of the 1988/89 concession.
It is to be noticed that in the first passage the judge was inviting the jury to consider whether Robinson might have known “that a shotgun cannot be married up to a particular spent cartridge or the wadding or shot from a cartridge….” [our underlining] whereas in the second passage he was inviting the jury to consider whether Robinson might have known “that Exhibit 25 could not be married up merely to the shot and wadding found at the farm…..” [our underlining].
What was the evidence? We deal first with that of the firearms’ expert, Mr Thomas Warlow. He said that the shot and wadding recovered from the scene indicated the discharge of a single 12 bore cartridge loaded with No.5 shot which was probably one of Eley manufacture. He said that it was not possible to marry up discharged shot with the discharging weapon. He made it very clear that the live cartridges (part of Exhibit 25) recovered by the police with the gun (Exhibit 25) were not of the type which had been fired and had caused Carl Bridgewater’s death.
The same applied to Exhibit 8 (an Eley cartridge loaded with No.3 shot) which had been recovered from 35, Wolston Croft.
Mr Warlow told the jury that a cartridge case loaded into Exhibit 25 was prone to slight but visible damage which was caused by the loose firing pin catching against the edge of the cartridge case as the gun was closed.
Such damage was visible on some of the cartridge cases forming part of Exhibit 25. Later in the trial Mr Warlow was recalled to deal with Exhibit 82, the cartridge case recovered about a mile away from Yew Tree Farm. Mr Warlow was certain that Exhibit 82 had not been fired from Exhibit 25.
Thus although no recovered wadding or shot could be married up to the weapon from which it was discharged, because of the eccentricity of the firing pin on Exhibit 25 it was possible to determine whether a particular cartridge case had been loaded into that weapon. It seems to us that an irresistible inference from the totality of the evidence was that whoever fired the weapon which caused Carl’s death would have known where and how effectively the cartridge case had been disposed of following the incident at Yew Tree Farm.
The fact that Robinson had led the police to his well concealed sawn-off shotgun was a strong point in the defence contention that Exhibit 25 was not the murder weapon; the argument being that no killer would run the risk of incriminating himself by leading the police to the murder weapon. It was therefore appropriate, if the judge was going to canvass with the jury a point which, if sound, would neutralise this argument, that he should remind the jury of any relevant evidence given by the defendant. This he did not do.
Robinson in his examination in chief told the jury that he knew Exhibit 25 would be examined by a forensic scientist and he was “confident” that such an examination would clear him. In cross-examination he was asked this pertinent question:
“Q. Did you know enough about a sawn-off shotgun to know if it was used and a cartridge was not available it could not possibly be tied up by a scientist with any particular gun?
A. I’m not a gunsmith, no, I didn’t know.”
In our judgment it was perfectly proper for the judge to have made appropriate comment upon the point which had been relied upon so heavily by the defence. However in doing so he should have reminded the jury of what Robinson had said in the witness box and he should have directed them that they had to be sure that an adverse inference could be drawn from the evidence before they could act on it. The true question for the jury to consider was not “whether Robinson, apparently with some liking for a gun, might have known about the fact” – nor was it “may it not have been in Robinson’s knowledge ….”. This was an important point in the case. The defence had deployed a powerful argument to deal with it. If the judge felt it necessary to alert the jury to the other side of the coin then that inevitably involved reminding them of Robinson’s evidence and expressing accurately, in terms of the standard of proof, the questions which he was suggesting they might wish to consider. We accept that the language which in fact the judge used was capable of being regarded as an invitation to speculate.
The Alibi of James Robinson
In addition to Ground 3, which we considered earlier in this judgment, there are other grounds of appeal which relate to James Robinson’s alibi. In order to assess whether these are complaints of substance it is necessary to detail the circumstances in which this alibi eventually emerged.
As we have already stated, Robinson’s defence at the trial was that at the time of the killing he was at home in bed with the woman with whom he then lived; Carol Bradbury. Although it is true that throughout the many police interviews he denied being present at Yew Tree Farm, he did not provide the police with any firm particulars of his whereabouts during the afternoon of Tuesday 19th September until a relatively late stage. Having been arrested at 7 in the evening of the 6th December 1978 he was interviewed later that night about the raid at Chapel Hill Farm on the 30th November and the robbery at Tesco’s on the 24th November. During the course of the interview, Robinson said this:
“Now, just a minute, you’ll be putting me down for the paper kid’s murder shortly”.
Q. What has made you mention that?
A. Well, they shot a shotgun on that didn’t they?
Q. Yes, I haven’t mentioned that. I was talking about the Tesco job.
A. Well you can’t touch me for that job because I can prove where I was.
Q. Which job are you on about?
A. The paper kid’s.
Q. Let’s talk about the Tesco robbery.
Robinson was not questioned about the killing at Yew Tree Farm until the 8th December. The following day he was asked about his movements on the 19th September. He replied that he thought he was out thieving with Molloy but had no recollection of what they were doing.
On 10th December he was shown Exhibit 54 and during an interview in the early hours of the 11th December he said “Given time I’ll tell you” in reply to an officer’s comment “you can’t tell us where you were on the 19th September…”. Later that day the police returned to the question of his whereabouts on the 19th September. On this occasion Robinson said, referring to Carol Bradbury, “Well, I can’t be sure but I think she was in hospital at about that time. I may have been visiting her in the afternoon or I may have been on the pop. Can you give me any sort of clue? What does my wife say I was doing?” He was then told that Carol Bradbury had informed the police that he had collected her that morning (the morning of the 19th September) from the Women’s Hospital. That event has never been disputed: She was discharged during the morning. After being informed of what Carol Bradbury had said Robinson agreed and added “I took her home on the bus”. He said that Molloy had been with him. The police told him that Carol Bradbury had said that after taking her home Robinson and Molloy had gone out together for a drink. Robinson replied “We may have done”. Thereafter he repeatedly told the police in later interviews that day that his mind was a complete blank as to his whereabouts during the afternoon of the 19th September. In the evening of the 11th December he told police “….all I can think is that I went with Pat for a drink down the Cali”.
On the 22nd December the police saw Robinson at Winson Green Prison. On this occasion he provided further details. Having repeated that he went to the California public house after taking Carol Bradbury home he said “After I had a few drinks I went and got her a bunch of flowers from the shop across the road from the Cali”. He then said that having returned to 35, Wolston Croft with the flowers he and Carol Bradbury spent the afternoon together in bed. He told the police that he had had sexual intercourse with Carol Bradbury that afternoon although in evidence he said he was uncertain as to whether that had occurred during the afternoon or the evening of the 19th September or the following morning. Referring to the act of intercourse Robinson told the police: “I took my time ’cause she had her stomach stitched up.” Robinson may therefore be thought to have had a particular reason for remembering the afternoon of Tuesday 19th September. The 22nd December was however the first occasion he had told the police where he was at the time of the armed raid at Yew Tree Farm.
Following his committal for trial on the 15th May 1979 an alibi notice dated the 1st June was served on the prosecution. The timetable of his movements that afternoon was set out as follows: “Evidence will be called on behalf of the accused to show that on Tuesday the 19th September 1978 from approximately 12:00/12:30 pm until approximately 2:45/3:00 pm he was at the California public house, Weoley Castle, and that from approximately 2:45/3:00 pm until approximately 7:30/8:30 pm he was at his place of abode at 35, Wolston Croft, Weoley Castle in the City of Birmingham or otherwise within the strict vicinity and within easy walking distance of that said place of abode”.
Thereafter the notice states that it is proposed to call four named persons in support of the accused’s evidence. Those named persons were: Carol Bradbury, Tracey Humphrey, Patrick Molloy and Carol Wilson. The notice anticipates that the particulars of further witnesses would be furnished. It is clear from the text of the prosecution opening that (with the consent of the defence) the jury were told that an alibi notice had been served. They were told too about the details of the alibi. They were not, (so the court was informed), told the identities of the persons who supported the alibi. Nor, it would seem, was either Patrick Molloy’s alibi notice (which was opened to the jury in the same way) nor James Robinson’s alibi notice exhibited. At the trial Robinson gave evidence in support of his alibi. He told the jury that having arrived home with Molloy (via the florist), from the California public house, he had some dinner, retired to bed with Carol Bradbury and went to sleep. He said in cross-examination on behalf of the prosecution that Molloy was in the premises both at that time and at the time he woke at around 6:55pm. The television programme “Star Trek” was beginning. Although Robinson could obviously not claim to have known of Molloy’s whereabouts while he slept he told the jury that Molloy “seemed to have been there all that afternoon”. It was pointed out to Robinson in cross-examination that the details of his own whereabouts during the afternoon of the 19th September which he gave the police on the 22nd December had been disclosed by him only after Carol Bradbury’s visits to the prison in mid-December. The fact that the two of them had discussed the question of his movements on the 19th September emerged clearly during his interview with the police on the 22nd December. To the suggestion in cross-examination that “it was after she had been to see you and you were sure of what she would say that you came out with the story that you had been in bed with her that afternoon”, Robinson replied “That’s a lie”.
The first complaint advanced on behalf of Robinson on this aspect of the case is that those parts of the police interviews in which he was informed of what Carol Bradbury had been saying to the police were inadmissible and should not have been led before the jury. A related complaint is that the Crown’s cross-examination of Robinson upon that inadmissible material was improper. The first reference by the police to what Carol Bradbury had said to them occurred in an interview with Robinson which began at 1:10pm on the 11th December. By then Robinson had repeatedly said that he could not remember where he had been on the 19th September. After he had been given a further opportunity to think about it the police returned to his cell. DCI Taylor said “You’ve had nearly an hour to think about your movements on the 19th September. Can you now tell us what you were doing?” Robinson replied, “Well I can’t be sure, but I think she was in hospital at about that time. I may have been visiting her in the afternoon or I may have been on the pop. Can you give me any sort of clue? What does my wife say I was doing?” Taylor then said, “According to your wife, this was the morning that you picked her up from the Woman’s Hospital” With that proposition Robinson agreed and added “I fetched her from hospital I took her home on the bus”.
The following further details of what Carol Bradbury had told the police were revealed during the interview:
(i) that Robinson took her part of the way home in a blue van.
Robinson said he might have had a blue van.
(ii) that Robinson had abandoned the van on the picture house car park.
Robinson could not remember that.
(iii) that Molloy travelled home with them on the bus.
Robinson had been unsure about that and had asked the officer “what does Carol say?”.
(iv) that having taken her home they left her and went out together for a drink.
Robinson replied “We may have done”.
Details of what Carol Bradbury had told the police were first revealed because Robinson had asked for them. Having heard them he adopted most of what she had said. He rejected nothing as being positively untrue. Further, it is this evidence which demonstrates that Robinson’s memory of his movements on the 19th September had apparently been jogged as early as the 11th December. The evidence was clearly admissible and there was in our judgment no basis upon which the judge’s discretion to exclude it could have been exercised.
We observe, too, that not one of those details disclosed by the police in interview prejudiced the credibility of Robinson’s alibi.
Later in the afternoon of the 11th December, the police interviewed him again. DCI Taylor said “I can’t help you any more respecting that day. I have taken you through what you were doing immediately prior to the murder. All you have do is remember what you were doing after you left your wife in the house”. Robinson said he could not remember what he was doing that afternoon, and asked for more time to think. An hour or so later he said his mind remained a complete blank. He added “I might have gone for a drink and got the worse for wear”.
Further details of Carol Bradbury’s recollection of what had happened that morning at the hospital were put to him. He agreed with them. He said he had been out all night “I can’t understand why I didn’t go to bed in the afternoon because I would have been knackered”. He was then reminded that Carol Bradbury had said that he and Molloy went out. Again, Robinson replied “I can’t fucking remember, all I can think is that I went with Pat for a drink down the Cali…” He then asked for yet more time to think. In our judgment for the reasons we have already given, that evidence too was properly admitted.
He was next seen by the police on the 22nd December in Winson Green Prison. Carol Bradbury had visited him there on various occasions in mid December. During this interview Robinson made several references to what Carol had told him of the events of 19th September. She now agreed with him that he had collected her in a Ford estate and not a van. He agreed with her that he had parked the vehicle behind the cinema. He went on to tell the police that, after taking her home and covering her with a rug, “I asked her if she would be all right on her own if I went for a pint …. I went up the Cali and a couple of the lads asked how Carol was”. He then went on to explain how after leaving the public house he returned home via the florist and then went to bed with Carol Bradbury. It perhaps was not surprising that at trial the prosecution made the point that his alibi for the relevant part of the afternoon was only revealed to the police after he had had an opportunity to discuss the events of that day with Carol Bradbury. Nor is it surprising that the prosecution chose to test his claim that he had genuinely been unable to remember until after the 11th December, that, at the all important time in the afternoon of the 19th he had been at home in bed. Inevitably he was asked about the interviews we have referred to and inevitably the jury heard again those details which Carol Bradbury had given the police not one of which, as we have observed, was in conflict with his evidence. The point of the questions could not have been clearer, namely, why did these details of Carol’s recollections, which he was given on the 11th December not jog his own memory of what he had done later that afternoon. The claim that on those parts of the interviews in which reference was made to Carol Bradbury’s recollections the cross-examination was improper is in our judgment entirely without substance. There is however one passage during that part of the cross-examination concerning a different point which counsel on mature reflection would not have chosen to pursue in the way that he did. The passage is to be found at Vol. 18A pp47F-48C of the transcript of evidence on the 31st October 1979 and involved the suggestion that Robinson’s conduct during one of those interviews, his crying, his calling on God’s help, his inquiry of an officer “Do you believe I would shoot a young kid like that?”, was all a charade. It was a legitimate suggestion in the context of the cross-examination at that stage. However, attempting to lend weight to the suggestion by reminding Robinson of the fact that Molloy’s denials were similarly a charade because they were eventually followed by a confession was both inappropriate and unfortunate.
Next is a complaint (Ground 45) made about the summing up in relation to the alibi issue in Robinson’s case. No witnesses having been called in support of Robinson’s alibi evidence, the judge made this observation at p118 G-H:
“There were in Robinson’ s case no witnesses called to support his alibi. One of the potential witnesses was Molloy but Robinson had no right to call a fellow accused and Molloy himself chose not to give evidence. The other potential witness was of course Carol Bradbury. The prosecution could have called her, but no doubt for good reason they chose not to do so. She could have been called on Robinson’s behalf. The defence might have called her, or not, as they liked. He chose not to call her and that is a matter you can take into account”.
It is said that the judge’s direction to the jury that they could take into account Robinson’s failure to call Carol Bradbury to support his alibi constituted a misdirection and, in the particular circumstances of this trial, a highly damaging misdirection.
In our judgment, there can be no objection to the judge commenting adversely upon the failure of the defence to call a particular witness providing:
(i) it is appropriate so to do;
(ii) the comment is fair and is expressed in terms appropriate to the circumstances;
(iii) the impression is not thereby created either that the burden of proof has (or may have) moved onto the defence or that there was some obligation upon the defence to call the witness; and
(iv) great care is taken to avoid the possibility that injustice may be done by leaving the jury with the impression that the failure to call a particular witness is something of importance when in fact there may have been a good and valid reason why a witness should not be called which would not bear on a jury’s decision.
In Bryant and Dickson (1946) 31 Cr App R146 and in the case of Wheeler (1968) 52 Cr App R 28 the court was considering a comment made in respect of a witness whose existence was well known both to the prosecution and to the defence at the time of the trial, whose name featured in the prosecution evidence, who was obviously in a position to give material evidence and yet who was not called by either side. In Bryant and Dickson Lord Goddard said (pp152-153):
“Campbell was not called by the prosecution, no doubt for very good reasons. He was not called for the defence, no doubt for equally good reasons but the learned Common Sergeant in the very early stages in his summing up said this:…. ‘It is perhaps not for me to express any view as to whether the prosecution should have called him or the defence should have called him; that he should have been called,I have no doubt, by somebody: …. The learned Common Sergeant did, in the opinion of the court, put the matter rather too widely. It would have been better and more accurate if he had said some such words as these ‘Campbell is absent and it is not very satisfactory that he is not here. The prosecution could have called him and have not done so perhaps for very good reasons. The defence might have called him or not, as they liked.’ …. In a criminal case there is no obligation on the defence to call any witness though the failure to call a particular witness may be a matter the jury will take into account.”
In Bryant and Dickson there was therefore no adverse comment specifically visited upon the defence. The trial judge had merely expressed a measure of indignation about the absence of Campbell from the witness box. It is clear from Lord Goddard’s observations that it was appropriate for the jury to be told that the defence were free to choose whether they called him or not. Although he stated that the failure to call a particular witness may be a factor which the jury can take into account that entitlement was not expressly included in the form of words which Lord Goddard suggested would have catered for the circumstances of that case.
In Wheeler (1968) 52 Cr App R 28 the trial judge had clearly based his comment upon Lord Goddard’s observations. On this occasion the point was not argued because the Crown were not represented; the judgment was upon Wheeler’s application for leave to appeal against conviction. Furthermore, the case of Bryant and Dickson was not cited. The Court regarded the comment that “[the failure of the defence] to call [the witness] is a matter which you are fully entitled to take into account”, as being “unfortunate and unhelpful and that any repetition of such a reference in a case where a witness is not called by either side is undesirable”. It was said that a more appropriate comment would have been to the effect that the jury should not speculate as to what inference if any should be drawn from the fact that neither side had called the witness.
In Gallagher (1974) 59 Cr App R 239 the defence account of the relevant events was revealed for the first time when the defendant gave evidence. His narrative involved a number of persons whom the defendant named, including one of particular importance if the narrative was true, whom the defendant admitted in cross-examination he had made no attempt to trace. The jury were told in the summing up, that the fact that three of those named had not been called and that no attempt had been made to trace the fourth was a factor to which they could have regard. They had earlier been told there was no obligation upon the defence to call any witness. On appeal, this court concluded that the judge’s comment was entirely fair and entirely appropriate in all the circumstances.
Having drawn attention to the conflicting dicta in Bryant and Wheeler the court distinguished both on the ground that –
“the potential witnesses in the present case in respect of whom the judge made observations were persons in respect of whom the prosecution had no possible means of knowing that it was going to be suggested that they had any relevant evidence to give until the appellant himself came to give evidence at the trial” (p 244).
The court went on to stress, as we now do, that if an adverse comment is appropriate the terms in which it is expressed must be determined, not by some approved formula but by the particular facts and circumstances of the case.
Next and finally there is the case of Wilmot (1989) 89 Cr App R 341 which is the only relevant case to have been decided since the trial of the appellants in 1979. In Wilmot the trial judge had commented adversely upon the defendant’s failure to call his solicitor to support a claim made in the witness box that his defence had not been invented after he had received the committal papers which of course had revealed details of the prosecution’s case against him. Approving the judge’s comment the court said this (p.352):
“We take the view…..that the occasions on which it is proper to make a comment of this kind will be rare. It would be difficult to lay down a hard and fast rule and we do not attempt to do so. In our view such a comment should only be made where there is a very strong case for suggesting that an account which a defendant is giving has recently been fabricated and where, if it has not, there would be another witness (or other witnesses) of any description who could substantiate the defendants story if it were true. Here, there was such a very strong case.”
The court distinguished Wheeler on the basis that in Wilmot the prosecution could not have called the relevant witness namely the defendant’s solicitor.
We do not read the judgment in Wilmot as catering generally for the circumstances and the terms in which a judge may comment adversely upon the failure of the defence to call a particular witness. The court in Wilmot confined itself to pronouncing upon the propriety of a judge making an adverse comment when a suggestion of recent fabrication had been denied and there was plainly a witness available to support the denial (if true) who had not been called.
Before leaving the case of Wilmot we observe that although the court in that case appears to have accepted that Wheeler laid down certain general principles, had the court’s attention been drawn to Gallagher we venture to think that some qualification would have been appended to what was said about the decision in Wheeler. In Gallagher both Bryant and Dickson and Wheeler were cited. Having noted the apparent conflict between the respective approaches, the court in Gallagher said this (p 244):
“Having referred to the decision in Wheeler this court should make it clear that in it’s view, and in the view of each member of it, it would not be right to say, as a matter of general principle, if that was what was indeed intended in the judgment in Wheeler, that it is unfortunate and unhelpful that a judge should tell the jury that the absence of a potential witness for the defence is a matter which the jury are entitled to take into account. It is permissible for a judge in an appropriate case to tell the jury that they are entitled to take into account the fact that a potential witness who has not been called has not indeed been called. It is of course clear that in making any such a comment, the judge must exercise care…. ….. But it would be wrong and inappropriate to seek to tie the hands of the trial judge by laying down or attempting to lay down any particular formulae because it must depend essentially upon the infinitely varying facts of the different cases. In the view of this court the formulae, if that is the right word, which were suggested in Bryant and Dickson and Wheeler were formulae which were applicable to the particular facts of those particular cases”.
It is clear that in commenting as he did upon the fact that Carol Bradbury had not been called on behalf of Robinson, the judge was basing himself upon Lord Goddard’s suggested wording and concluding observation in Bryant and Dickson (p 153). Carol Bradbury’s existence was well known to the prosecution: the police had interviewed her and had taken a statement from her. Depending upon her stance as to Robinson’s whereabouts during the afternoon of the 19th September she could have been an extremely important witness either for the Crown or for the defence. Having regard to Robinson’s own evidence the judge inevitably had to say something about her absence. To have confined his remarks to a direction that the jury should not speculate upon what she might have said would in the circumstances have been utterly unrealistic: the defence had chosen not to call someone who, on the defendant’s case, was an important alibi witness and who was, inferentially, available to be called. That person was the person with whom the appellant had been living. To have directed the jury that they should not consider the question “why” when there was evidence capable of giving rise to a proper (albeit adverse) inference would have been inappropriate. In the circumstances of this case the judge’s comments cannot properly be regarded as merely an invitation to speculate. It is true that the judge did not in terms warn the jury as part of the direction either that the onus of proof remained firmly on the prosecution (that by then must have been entirely clear to them) or that there was no obligation upon the defendant to call any witness. That, however, was implicit in the language of the direction which the judge gave.
It was submitted on behalf of Robinson that this direction was highly and improperly damaging to Robinson’s case because there was before the jury evidence of certain details which Carol Bradbury had given the police and because the prosecution cross-examination of Robinson upon those passages would have conveyed the impression that the prosecution regarded Miss Bradbury’s version as correct. In our judgment this complaint is ill-founded. It was Robinson’s own case both to the police on the 22nd December, in his alibi notice and at trial that he had left Carol Bradbury at home and had gone out to the California public house. No detail of what Carol Bradbury had said about later that afternoon had been revealed. The outstanding question which was resolved by the judge’s direction was whether the jury, in their assessment of Robinson’s alibi, were entitled to have regard to the fact that Carol Bradbury had not been called in support of his case.
Before leaving this aspect of the alibi issue we should perhaps record that one of the persons named in Robinson’s second alibi notice was a prosecution witness. Carol Ann Wilson gave evidence that she met Robinson in the California public house on the day Carol Bradbury was discharged from hospital. Robinson had told her that he had been that day to collect her. She said this conversation between them was at about 1:30 pm and that she had left the public house at about 2:50 pm. She did not know whether Robinson and Molloy (who was with Robinson) had left by then.
Ground 45A was not pursued but its subject matter is relevant to Robinson’s movements during the afternoon of the 19th September and we must deal with it. On the 23rd December 1978 Violet Collins made a statement to the police. She knew both Robinson and Carol Bradbury. She said that either on the 19th, 20th or 21st September at about 3:30 in the afternoon she was on her balcony which overlooked Barnes Hill and saw Robinson walking along the road carrying a bunch of flowers. She called down to him and inquired how Carol was and he replied that she was “All right”. She knew and was a friend of Molloy. She did not state that on this occasion Robinson was with Molloy. The less than five minute walk from the California public house to 35, Wolston Croft, where Robinson, Carol Bradbury and Molloy then lived, was via Barnes Hill. There was a florist directly across the road from the California. The relevant locations were therefore extremely close to each other. If such an event occurred, for reasons we will explain in a moment, it must have occurred on Tuesday 19th September. Mrs Collins’ estimate of the time (about 3:30) did not accord with Robinson’s alibi notice (2:45/3:00). The sighting, if it occurred, must have occurred on the 19th September because during the afternoon of the 20th September Robinson was stealing the Ford Cortina Estate belonging to Mr and Mrs Hitchman. The car was stolen between approximately 3:05 pm and 3:15 pm from St John’s car park in Harbourne (a district of Birmingham). By the afternoon of Thursday 21st September Robinson was in custody following his arrest earlier that day for the Tamworth burglary committed with Molloy during the night of 20th/21st September.
Notwithstanding the apparent potential of this evidence, Mrs Collins was not called as a witness at the trial. The complaint in Ground 45A that her statement was not disclosed to the defence is now recognised to be mistaken: her statement was included in the unused material. It is true that Telephone Message 15352 dated 27th April 1979 was not disclosed. That reveals various pieces of information which a prosecution witness (Sue Bennett) had obtained from Carol Bradbury and had passed on to the police. Paragraph (f) of the message is to the effect that Mr Fryer (Robinson’s solicitor) is “very interested” in Collins, because Collins had told Carol that she saw Robinson during the afternoon of the 19th with a bunch of flowers. Carol, according to the message had informed Mr Fryer of this and he wondered why he had not received this in statement form. The message reveals that at some stage Collins thought she had seen Robinson on 19th September. However, Robinson’s position cannot possibly have been prejudiced by the non-disclosure of this document because his solicitor was obviously aware of Mrs Collins one-time claim to have seen Robinson on 19th September. Furthermore, even if there was any uncertainty about the date of Mrs Collins’ sighting, Robinson must have known perfectly well, for the reasons we have already given, that it could not have been either on Wednesday 20th or Thursday 21st.
Ground 45A contains a further complaint that Mr Hitchman’s statement was not disclosed to the defence. That is true but the complaint, as is now recognised, is really groundless because Mrs Hitchman’s statement was included in the unused material and that statement provided the same information. It follows therefore that no suggestion can be made that the decision not to call Mrs Violet Collins at the trial may have been different if the Telephone Message and Mr Hitchman’s statement had been disclosed. It is appropriate for us to observe at this juncture that although Patrick Molloy’s personal representatives have waived the legal privilege attaching to his instructions to solicitor and counsel and the preparation of his defence neither Robinson nor Vincent and Michael Hickey have done so. That is not a complaint. It does mean however that this court is not aware of what information was or was not known to the defence at the time of the trial.
Given what is revealed in the Telephone Message it would have been surprising had Mr Fryer not been in touch with Mrs Collins by the time of the trial. This point can be advanced further because Mrs Collins did give evidence before the Court of Appeal in 1988. Under cross-examination she told the court that she had made a statement to Mr Fryer and that at one time she had been expecting to be called as a witness at the trial. The decision not to call her was accordingly a thoroughly informed decision. In 1988 she was again taken through the detail of her evidence. It was by then common ground that her sighting had occurred on the 19th September the sole live issue was therefore as to the time of the sighting: a sighting at or about 3:00 pm would not have been inconsistent with the Crown’s case that Robinson was at Yew Tree Farm at the time of the raid or indeed with Robinson’s own alibi notice, whereas a sighting at about 3:30 pm would obviously have undermined the Crown’s allegation. In 1988 Mrs Collins told the court that she did not remember whether Molloy was with Robinson at the time of the sighting. When asked whether Robinson might have reached his own house by about 3 o’clock she replied “I am not quite sure”. She was then asked whether Robinson might be right if he said he was home by 3 o’clock; she replied “I cannot answer that”.
During the course of her evidence in 1988 Mrs Collins also told the court that she was sure Robinson’s hair was curly and fell “about to his neckline” on the occasion of which she was speaking. She was asked if she was sure about that. She replied, “Yes, because Carol permed it.”
Q. We are talking about the day that you saw him walk past with flowers. Are you sure about that? It is a long time ago and if there is any possibility of a mistake please say so?
A. No, it was curly.
Q. You are absolutely certain?
A. Yes.
Q. And about the collar length
A. Yes.
She went on to say that she could not remember the colour of his hair. In re-examination she was asked these questions:
Q. You say that you remember Jimmy’s hair because Carol permed it. She certainly did not perm it that day. She was in hospital. Do you follow?
A. It was permed a week before — some weeks before.
Q. You can remember the last time it was permed can you? It was some weeks before?
A. Not the dates. I have always known him with curly hair.
Q. But it was permed sometime before?
A. Yes.
Q. Can you remember now whether when you saw him on that particular day he was or was not wearing a cap?
A. He did not have a cap.
It was clearly important that in their assessment of Robinson’s alibi evidence the jury should have focused upon only relevant considerations. There remains the question of whether there is substance in Robinson’s complaint that his case at trial was improperly prejudiced by virtue of the approach adopted towards the then admissible Exhibit 54 both by the prosecution in cross-examination and by the judge in his summing up. As we have already stated, having regard to the close association between Robinson and Molloy, to the fact that their alibi notices had been read to the jury, to the content of Exhibit 54 and to the fact that Molloy’s principal defence was founded upon Exhibit 54 rather than upon his alibi notice, it was necessary both for the prosecution and the judge to adopt a “safety first” approach in their use of and comment upon that document.
Ground 2 of Robinson’s grounds of appeal complains of persistent improper cross-examination of Robinson by counsel for the prosecution. Numerous alleged examples of such cross-examination are cited in the ground. It is said that counsel “paid no regard to fundamental rules of proper questioning”. The criticism is not confined to prosecuting counsel, it extends to defending counsel for not objecting and to the judge for not intervening. Heavy reliance is placed by counsel for Robinson upon the decision of the Court of Criminal Appeal over 70 years ago in the case of Baldwin (1925) 18 Cr App R 175. We were also referred to the appropriate paragraphs in the 40th and the current edition of Archbold — paragraphs 525a and 8-116 respectively.
The validity of any of these criticisms can only be assessed by having regard to the context in which the questions were put. It is also necessary to remember that Molloy, who for obvious reasons was first on the Indictment, had not availed himself of the opportunity to give evidence.
The references we give below are to the relevant page of the transcript for the 31st October 1979.
Counsel began his cross-examination by reminding Robinson of his outburst in the witness box the previous day when he had pointed at his co-defendants in the dock. Robinson said he had pointed at Vincent Hickey because (and we quote) “He had told diabolical lies about me”. Robinson then denied pointing at Molloy although Molloy too (so Robinson said) had told “diabolical lies” about him. Then, (at p 1G):
Q. At the time with which the jury is concerned you were Pat Molloy’s best friend?
A. You could say that, yes.”
It was entirely proper for counsel to explore the explanation for Robinson’s conduct in the witness box the day before and to explore the relationship between Molloy and Robinson. At p 2F having reminded Robinson of what he said to the police when he was first shown Exhibit 54, counsel asked:
Q. Did you wonder to yourself why Pat Molloy should involve you?
A. Of course I did.
Q. Did you wonder to yourself why Pat Molloy would involve himself?
A. Yes.
Robinson’s state of mind having read Exhibit 54 was a legitimate subject of inquiry.
On page 3 Robinson agreed that when he had pointed to Vincent he was probably intending to take in Molloy as well. He agreed with that, having been reminded in some detail of the evidence of two prison officers (Edwards and Shields) who had spoken of what Molloy had said to them about who had used the gun at Yew Tree Farm. Although that evidence was clearly not admissible against Robinson, the reference to it was legitimate having regard to counsel’s purpose which was to explore whether Robinson’s initial denial of having pointed to Molloy was truthful. It was equally legitimate for counsel to go on and explore what Vincent and Michael Hickey had said to Robinson in prison about what Vincent had allegedly been saying to the police about Robinson.
Appearances and impressions must inevitably play a large part in the jury’s assessment of and reaction to the evidence as it unfolds before them. For questions in cross-examination to create the impression (even inadvertently), that a particular piece of evidence is evidence relevant to the case against that defendant when it is not, is unfortunate, as it misrepresents the position.
At page 8C counsel was asking Robinson how well he knew Vincent Hickey:
Q. Did you know Vinny Hickey at all other than just as a casual drinker at the Dog and Partridge?
A. Not really, no.
At p 9B:
Q. Let us get the picture. You are saying when it comes to it, Vincent Hickey did not really know you at all?
A. No he didn’t.
There then followed these questions at p 9B-D, 9H and 10A-F:
Q. As you told us last night, and repeated again this morning, Vincent Hickey has put you in for this, has he not?
A. Yes.
Q. When he was putting you in for it he was putting himself in for it too, was he not?
A. It appears that way, yes.
Q. Did you realise he was putting you in for it on the 5th December, Mr Robinson?
A. No.
Q. That could not just be prison gossip or people reading the papers in this case could it?
A. No.
Q. What I am suggesting to you, so there is no misunderstanding, is whatever anybody else may have done, Vincent Hickey did not get all the information he has given the police from reading these papers, did he? That would not be probable, would it?
A. No.
Q. … On the 5th you agree Vincent did not have all this material that we now have from which to fabricate the case against you, did he?
A. No, but he had a very lively imagination.
Q. Is that what you are saying, everything Vincent Hickey said was his imagination working away?
A. I say it. He has also said it.
Q. When you thought and still, as you say, think Vincent has a lively imagination, did it occur to you Pat Molloy had a lively imagination?
A. He has.
Q. And both these imaginations, did it occur to you, had imagined a large number of things in almost identical circumstances. Is that what you are saying?
A. I am saying that the part they gave me in it not what they have said about describing this and describing that, the part they gave me in it is imagination.
Q. It is pure coincidence that the part that each of them has given you is the same?
A. I don’t agree it is the same.
Q. Well, we will go into that in a moment. Can we just come to Michael. Michael Hickey you did not know at all?
A. I did know him, yes.
Q. You may have met him in the pub?
A. Yes.
Q. Speak to him in the Dog and Partridge?
A. I had been on nodding acquaintance with him for a number of weeks, but I think the first time I got to know him was when I got me suspended sentence.
MR JUSTICE DRAKE: When you say you were on nodding acquaintance with him and had met him in the pub, that is before you were taken into custody on the 21st September.
A. Yes.
Q. Then you said you got to know him better after you came out.
A. Yes, my Lord. I used to see him sometimes of a lunchtime to say, “How are you”. I knew he was something to do with Joe Hickey but the exact relationship, I didn’t know what it was.
MR JUDGE: If Mr Kelly is right in his evidence, and that is a matter for the jury to consider, Michael Hickey told him that you were mad and you had shot the baby. Just let us assume for the moment Mr Kelly is right and that was said. Are you saying Michael Hickey would simply have got that from reading the papers?
A. I don’t know where he got it from, but Michael Hickey has denied saying it.
Q. I follow that. That is why I put the question the way I did, but if the jury believe Mr Kelly’s evidence about it, where do you think Michael Hickey got that from?
A. I don’t know. Michael Hickey didn’t know enough about me to say I was mad.
Q. You see, Mr Robinson, just pause and see where we have got to so far. Helen Johnston, whom you trusted, referred to the conversation she said she heard. Vincent Hickey, who you did not know, put you in for it. We will leave Michael Hickey out just for the moment. Pat Molloy, and you were his best friend, also put you in for this. Is that all just a coincidence?
Although it was entirely proper for counsel to explore the relationship between Robinson and each of the Hickeys, and whether Robinson himself was the source of what they had been saying Robinson was not answerable for anything either of them had said to the police or anyone else. The fact that Vincent’s and Molloy’s versions coincided was irrelevant to the case against Robinson and he should not have been invited to comment upon it. The last question was particularly unfortunate because first it was ‘comment’ and second, by linking the claims of Helen Johnston (a prosecution witness) Vincent Hickey and Molloy at the very least counsel would have appeared to the jury to be affording to those two defendants the status of prosecution witness and, more significantly, affording to what those defendants had said to the police the status of prosecution evidence which was admissible against Robinson. Counsel adopted this approach more than once. Having quite properly asked Robinson for his opinion as to whether his shotgun (Exhibit 25) might have been discharged accidentally and having obtained the answer “It would be a funny accident if it took nine pounds to pull the trigger”, counsel then asked (p 17B):
Q. Molloy said in a statement that he heard you say words to the effect that the gun had gone off by accident. Was Molloy inventing that?
A. Yes.
Q. Helen Johnston gave evidence to the same effect that she heard Molloy telling you to say it had gone off by accident and she is wrong is she?
Once again in that first question, at the very least counsel would have appeared to the jury to be presenting to Robinson for his comment evidence which was admissible against him. Having asked about what Molloy and Helen Johnston had said upon the topic of ‘accident’ counsel went on to ask Robinson about what Dundas Ure, Bryant and Ritter had said upon the same topic: each had told the jury that Robinson had said to him that the killing was accidental. Robinson was properly asked for his observations upon their evidence. The relevant passage begins at p 17D and concludes at p 19C. No significant complaint can be made in respect of the questions put in that part of the cross-examination. At page 19C the following questions are put:
Q. Let us just consider it, Mr Robinson, for one moment longer. There are five people who report words being used to the effect that this boy died as a result of an accident. Helen Johnston.
A. Yes.
Q. Pat Molloy.
A. Yes.
Q. Dundas Ure.
A. Yes.
Q. Bryant.
A. Yes.
Q. And Ritter.
A. All cons and liars.
Q. All cons and liars?
A. Yes. I had twenty-five policeman on to me back for a week, day in, day out, no food, no sleep; do you think I’m going to go round telling people in the nick that I had anything to do with that.
Q. Just tell the jury this. Do you know whether Helen Johnston, knows Bryant or Ritter? Are you saying they have all put their heads together to make this up?
A. They have all jumped on the band-wagon, that’s what I’m saying.
Q. The band-wagon they all jumped on isn’t “I killed the boy on purpose”, but “It was an accident”.
A. This is the talk that’s going around, yes.
Q. It is just all a coincidence, you have got this talk going round that they have picked up and come into the witness box to swear to the truth of it.
A. Yes, and if they had the time they could have probably got a lot more to say the same thing.
MR JUSTICE DRAKE: Why should they want to?
A. I don’t know, my Lord. I don’t know. They’ve got reason, I suppose, twisted reasons.
MR JUDGE: Why should Molloy want to?
A. He’s off his head. He’s got to be.
Q. When did he first show signs that you saw of being off his head?
A. Em?
Q. When did he show signs, as you put it, of being off his head?
A. When that statement was put down in front of me.
Q. That is his statement, is it?
A. Yes.
Q. No one has suggested on his behalf that it was knocked out of him, have they?
A. No.
Q. Or even that he was under particular pressure to tell lies, was he?
A. No, but he told lies.
Q. By chance he has made that statement which implicates you, his best friend.
A. Yes. He knows it’s lies too.
Once again the impression created by these questions is that the prosecution are relying upon Exhibit 54 (as against Robinson) by equating its evidential status with that of evidence given by prosecution witnesses. There can have been no other purpose in the last three questions than to underpin the truth of Exhibit 54 as against Robinson. It is true that the questions put were immediately after Robinson had said that he regarded Molloy as being “off his head” as soon as he saw Exhibit 54. But that comment was only made as a reply to counsels question “why should Molloy want to?” meaning ‘why should Molloy want to make this up’. That was not a question in this context which should have been asked. Counsel essentially was taking Robinson through the various pieces of evidence against him on this single topic. It was a mistake repeatedly to include Molloy in the list of relevant witnesses. Another example is to be found at page 28B which it is unnecessary to detail.
During one of the police interviews Robinson appeared to be puzzling over a passage in Exhibit 54 which he was then reading. The police asked him what was puzzling him and Robinson gave an explanation. At trial Robinson was cross-examined about that incident; he was handed Exhibit 54 and invited to find the passage which had been troubling him. He was then perfectly properly asked certain questions about his concern. The criticism of those questions is groundless. It was unfortunate that towards the end of the passage (at page 34E) he was invited to comment on the coincidence between what appeared in Molloy’s statement which had attracted Robinson’s attention and something that Vincent Hickey had said to the police.
On another occasion during one of the police interviews, having been handed Exhibit 54 and having read it, Robinson was asked “Is everything in that statement a fairy tale?”. The question was based upon Robinson’s initial comment when he had first been shown the document. Robinson’s reply to the officer’s question was ‘No’. Understandably that reply and Robinson’s replies to later questions put by the same officer were the subject of certain questions during his cross-examination. The relevant passage is at pp 36G to 38E.
The criticisms of counsel’s questions in that passage are groundless.
Very shortly before the end of the cross-examination this question was put to Robinson:
Q. I am suggesting to you that Molloy has told the truth about the four people who were at that farm, Mr Robinson?
That question, too, should not have been put.
We have concluded that there is substance in the criticism that there was during the cross-examination unjustifiable resort to Exhibit 54, that counsel for the defence should have found a way to object without prejudicing his client in the eyes of the jury – there was a luncheon adjournment during the course of the cross-examination (p 36E), and there is substance, too, in the criticism of the judge for not having intervened.
Other criticisms have been levelled at this cross-examination which do not impress us. There can be few cross-examinations if any which are beyond criticism. It is not easy in a lengthy cross-examination which covers much detail and requires rapid thinking and mental adjustment on the part of the cross-examiner, to concentrate upon the wording of every question and the avoidance of any comment. It is wholly inappropriate many years later for this court to comb through a lengthy cross-examination, such as this was, identifying each instance where counsel might have put a question in a different form or should have resisted the temptation to say this or that. One theme of the criticism of other passages is that counsel inquired of Robinson whether he was saying that the relevant witness (for example Ritter at p 5A; Helen Johnston at p 8A, Roberts at p 11D, Ritter at p 20C), had concocted or invented his or her evidence. In justification of the criticism reliance is placed upon the case of Baldwin to which we referred earlier. That case is authority for the proposition that questions in cross-examination should not be framed in order to extract an answer from the accused which will in turn be used to found the basis for an application to cross-examine him under s1(f) of the Criminal Evidence Act 1898. However in its judgment the court went on to make some general observations upon the form of questions put in the cross-examination of witnesses including defendants. These observations should be considered in the context of the point the court was considering. In this judgment delivered by Lord Chief Justice Hewart, the court criticised three forms of question which so far as the first and third are concerned, in the experience of each member of this court, are used in cross-examination on a daily basis up and down the country. The three forms of question are: first “I suggest to you that…..”; second “Is your evidence to be taken as suggesting that…” and third “Do you ask the jury then to believe…” The days when proper objection can be taken to forms 1 and 3 are in our judgment long gone. It is counsel’s duty to put his case and form 1 is a familiar preface in such an exercise. Similarly counsel is entitled to question a witness in order to elicit the true implications of his evidence.
These observations of ours are not intended to detract from the paramount requirements of any cross-examination namely, the questioning must be fair, accurately founded on the evidence and should not be a vehicle merely for comment. A witness, including a defendant, is entitled to expect the protection of the court and of his counsel (in that order) if any one of these principles is significantly flouted. As Lord Hewart observed:
“It is right to remember in all such cases that the witness in the box is an amateur and the counsel who is asking questions is, as a rule, a professional conductor of argument and it is not right that the wits of the one should be pitted against the wits of the other in the field of suggestion and controversy. What is wanted from the witness is answers to questions of fact”.
We turn now to the criticisms of the judge’s treatment of Exhibit 54 during the summing-up. The relevant grounds of appeal are Ground 48 and Ground 48A.
“48. The learned judge’s repeated references in the summing-up to [Molloy's] confession, to what was unchallenged or undisputed on his behalf …. improperly elevated his confessions …. to a dominant status within this trial unfairly prejudicing the Appellant. The references are spread throughout the summing-up and are not confined to the necessary review of the evidence and the issues in his individual case.”
Various references to the summing-up are then cited.PRIVATE
“48A The learned trial judge failed to direct the jury that in considering the case against this appellant there was no admissible evidence of the presence of Molloy at Yew Tree Farm; and thus that any conclusion they may reach on other evidence (such as Exhibit 54) in Molloy’s case on that question must be put out of their minds in Robinson’s case”.
This was a difficult case to sum-up. Not the least of the judge’s problems was effectively to explain to the jury the importance of confining the relevance of Exhibit 54 to Molloy’s case alone. This case like any other case could have been summed up in different ways. Had the judge elected to proceed defendant by defendant, whether the case concerning Molloy had been dealt with first or last, such a course at some stage would have involved a concentrated focus upon the whole of Exhibit 54. That at least was avoided by the approach which the judge did adopt, namely, to sum up topic by topic. This necessarily involved a number of references to what Molloy had said to the police (in interview and in Exhibit 54) as the judge dealt, topic by topic, with the relevant evidence concerning Molloy. This approach to the evidence was against the background of a full and clear direction relating to the evidential status of Exhibit 54. The rationale of the rule was also explained although, with hindsight, its terms might have been more effectively expressed had there been no reference to the possibility of each defendant having some oblique motive to adjust what he said to the police in order to protect either himself or his friend. The judge throughout the summing-up reminded the jury that what Molloy had told the police was evidence only against him. There were of necessity a number of references to what Molloy had said to the police whether in Exhibit 54 or otherwise. It is true that at p 119G when the judge was dealing with Robinson’s alibi there was an apparently needless reference to Molloy’s account of his own whereabouts which coincided with Robinson’s until around 3:0pm and differed from Robinson’s account thereafter because Molloy had admitted going to Yew Tree Farm. This difference, by that stage of the trial, must have been so apparent to the jury that a further reminder of it, at what may have been an inappropriate juncture, could not conceivably have affected their view of the case. Following hard on the heels of the passage in question was a further reminder, that what, Molloy had said to the police was not evidence against Robinson.
Notwithstanding the full direction on the evidential status of Exhibit 54 and the judge’s repeated reminders of its importance, it has been argued on behalf of Robinson that the judge ‘flaunted’ Exhibit 54 before the jury to an extent which must have improperly prejudiced Robinson’s case. We understand the thrust of the criticism to be that a significant number of the references to Exhibit 54 were either unnecessary or ill-placed or both. That is a very serious criticism and we unhesitatingly reject it.
There is however a further criticism. At page 48H the judge said this:
“Now the way in which you conduct your discussions when you have retired to the jury room is of course a matter entirely for you but may I make a suggestion as I have already, that the obvious starting point is to consider whether all or any of the defendants went to Yew Tree Farm on the day in question……the next question, I suggest, is to ask in respect of each defendant whom you may find to have taken part in the burglary is whether he knew a gun was being taken on the expedition…..”
It has been argued that such an approach had this consequence: as soon as the jury decided on the basis of Exhibit 54 that Molloy had been present at the farm Robinson, who in his evidence had given Molloy, an alibi became a discredited perjurer. A careful scrutiny of Robinson’s evidence reveals that he did not expressly give Molloy an alibi for the material period. We accept however, given the approach suggested by the judge, that it would be naive to suppose that a finding on the basis of Exhibit 54 that Molloy had been at Yew Tree Farm could not have coloured the jury’s approach to Robinson’s account of his and Molloy’s movements before Robinson retired to bed. With the benefit of hindsight we have come to the conclusion that rather different advice could more appropriately have been given. Unlike the trial judge we have available to us the judgments of this court in the cases of Paris, Abdullahi and Miller (1993) 97 Cr App R 99 and Horobin and Wilcox (Unreported) CA 7th April 1993. The topic by topic approach reflected in the summing-up provided the jury with a helpful analysis of the evidence. A judge cannot dictate to the jury how they should set about their task. However in a case such as this a judge can and would be wise to offer the jury some firm advice and explain his reason for so doing. The two decisions in 1993 serve to emphasise that the most effective way of bringing home to a jury the importance of confining the relevance of evidence, such as Exhibit 54, is for the judge to advise them to consider the position of each defendant in turn and to consider that of the relevant defendant last of all. Such advice serves to emphasise the need for an appraisal of the case both for and against each of the other defendants without reference to the confession of the remaining defendant. We accept that the need for such advice was particularly important in the case of Robinson, not least because towards the end of the summing-up (from pages 153-158) the judge was reminding the jury, in appropriate detail, of the evidence concerning Molloy’s knowledge of the gun. On page 158 the judge was reminding the jury of the evidence of Prison Officer Edwards about his conversation with Molloy upon that topic during the course of which, on the unchallenged evidence, Molloy had told Edwards that the one who used the gun was and we quote “The one who is about 46″.
It follows from these observations that we do accept that a summing-up which does not reflect the sort of advice to which we have referred might now be open to criticism on appeal. That would depend on the particular facts of the case. That the summing-up in this case did not contain such advice is a factor we should and do take into account when assessing the safety of the convictions not only of James Robinson but also of Michael Hickey and Vincent Hickey. We do not criticise the trial judge for the form of his summing-up because the reservation we have expressed has been identified only with the benefit of hindsight.
For the reasons we have given earlier in this judgment, the fact that fresh evidence has demonstrated that Exhibit 54 was inadmissible and should not therefore have been before the jury is itself sufficient, in the circumstances of this case, to warrant the quashing of Robinson’s convictions. During the course of what has inevitably been a lengthy assessment of James Robinson’s many other grounds of appeal we have identified those which we have regarded as grounds of substance: there have been a number of them. For example, we have expressed concerns relating to the identification evidence (particularly that of Miss Stagg), the treatment of Robinson’s alibi, the credibility of the prisoner evidence and the use to which Exhibit 54 was put during the trial. Whatever bearing each individually may have upon the safety of these convictions, having regard to their collective effect upon the strength of the case against him and upon Robinson’s case at trial, we would allow the appeal of James Robinson quite independently of the fresh evidence concerning Patrick Molloy’s confession.
The Alibi of Vincent and Michael Hickey
Both Vincent Hickey and Michael Hickey relied at trial upon the defence of alibi, stating that they were miles away from Yew Tree Farm during the afternoon of the 19th September 1978 when Carl Bridgewater was killed. They said they were in the Northfields area of Birmingham, principally at two particular places.
For the first part of the afternoon it was their case, and evidence, that from about 3.20 to 4.20 pm they were at Linda Galvin’s flat at 35/4 Lower Beeches Road, Northfield. For the latter part of the afternoon from about 4.40 to 5.30 pm they said they were at Bristol Road Garage, also in Northfield.
Michael Hickey’s first notice of alibi was served in May 1979, and Vincent Hickey’s first notice was dated 25th May 1979. Each of them filed a second notice of alibi on the 13th July 1979.
Each of them said that they had left Bristol Road Garage at about 5.30 pm and had returned to Linda Galvin’s flat, arriving there, according to Michael at about 5.35 pm to 5.40 pm and according to Vincent at about 5.30 to 5.40 pm.
In neither case did this alibi coincide with the alibis they had given when first questioned about their movements on the day in question. In Vincent Hickey’s case, on the 14th October 1978 he had said that on Tuesday the 19th September 1978 he was at the Birmingham fish market until about 11.30 am and then at the Dog and Partridge until that evening: in Michael Hickey’s case on the 20th December 1978 he had said that he was first at the Dog and Partridge and then went on a number of long taxi rides. It was later accepted that each first alibi was incorrect.
The alibi upon which Vincent Hickey relied at the trial was his third and was not raised by him in conversations with the police until after he had been charged. Vincent Hickey first made any mention to a police officer that he had been visiting garages at around this period when he spoke to DCI Knight and DS Kitson on the 11th January 1979, saying that he was loaded with money at that time and he had “put a few hundred quid deposit on an Allegro at a garage on the Bristol Road”. He did not identify any particular date.
On the same day he had put forward a second alibi when he had told the police that he had been working at the home of a retired policewoman on the material date and had broken a window there. The police made investigations into that alibi and found that it did not work because the dates were wrong. They told Vincent Hickey this on the 18th January 1979. On that date came the first indication of the alibi to be relied upon at trial for the earlier part of the afternoon when Vincent Hickey said:
“Linda bought a three piece suite. I’m pretty sure it was delivered that day and I was there. I pulled up outside just as it was being delivered, could you check?”
It was the firm contention of the Crown at trial that there had been deliberate fabrication of these first alibis and of the final alibi presented and that, if Vincent Hickey had been to the garage, it was on Wednesday the 20th September not Tuesday the 19th September, and Michael Hickey had probably not been there at all.
At the hearing of the appeal before the Court of Appeal in 1988/9 there was an important concession made by the Crown, who then, contrary to the position they had taken at trial, conceded that both Hickeys had probably been at the Bristol Road Garage on the relevant afternoon. The Crown, however, maintained the contention that they were not at the garage at the time of the murder and could not have been there before about 5pm.
This was a very important change of case and inevitably changed the focus which then devolved upon the distance of Yew Tree Farm from the Bristol Road Garage in Northfield and the time it would have taken to cover that journey, matters which had not received a great deal of attention at the trial, in view of the way the alibi defence then presented was challenged by the prosecution.
The question of timings had, of course, to start from the time of the murder of Carl Bridgewater, at about 4.20 pm, followed by the time of departure of the intruders’ vehicles as spoken to by various witnesses near the farm that afternoon. Evidence was given at the trial that from Yew Tree Farm to the Dog and Partridge (a distance of between 14 and 16 and a half miles depending on the route taken) the journey time was between 24 and a quarter minutes and 39 minutes and, on the occasion when Molloy was present with police officers in a vehicle, was 42 minutes. The Dog and Partridge and the garage were both in Bristol Road but the public house was in the Selly Oak area whereas the garage was in the Northfield part. The distance between the two premises is accepted as being 2.7 miles.
The evidence as to when the intruders’ vehicles left Yew Tree Farm came from a number of witnesses and we have already referred to it in detail. Wendy Stagg saw the vehicles there at about 4.45 to 4.50 pm, if her timings were right, but Mrs Gladys Jones looked at the drive to the farm and saw that there was no vehicle there at about 4.30 pm. There was other evidence that vehicles were seen at the farm until 5.05 to 5.15 pm.
A Mr William Mee gave evidence at the trial that he was at Bristol Road Garage that afternoon with others and saw no other purchasers at the time that he was at the garage, which was between about 4.30 and 5 pm.
It was thus the prosecution case at the earlier appeal and before us that the two Hickeys could not have been at the Bristol Road Garage before sometime after 5 pm and thus any appearance by them at such times could not afford any alibi for the murder of Carl Bridgewater.
At the nearer end of the Hickeys’ alibi to the time Carl Bridgewater was shot, the detail of Mr Mee’s evidence was that he was selecting a car at Bristol Road Garage with his brother and his friends, Paul and Gail Wyton. Mr Mee gave evidence at the trial and at the first appeal. His evidence was to the effect that he had not seen anyone else (and thus not seen the Hickeys) at the garage. The timing of his visit to the garage was of importance to the Hickeys’ alibi. In his first statement to the police on the 9th April 1979, his estimate for his time of arrival was between 4 and 4.15 pm and he estimated that he was there for about 1 hour, leaving around 5 pm. At trial, his final evidence was that the estimate of leaving the garage at about 5pm was likely to be right. At the first appeal he said that his time there, put as half past 4 to 5 o’clock, “sounded about right” and he said “it could have been or it could have been later”.
Mr Mee, sometime before the 9th April 1979 was interviewed by Mr Gilkes, Vincent Hickey’s solicitor. He told him he could not remember seeing anyone at the garage other than the proprietor. (In the solicitor’s proof, signed by Mr Mee, the word is “proprietors”).
Mr Mee’s brother, Robert, said in a statement of the 14th May 1979 that they had all left Bristol Road Garage “at about 5 pm because Gail wanted to do some shopping and she remarked that the shops would soon be closing.”
Paul Wyton’s statement in the first appeal said that the time of the visit was around 5 pm and his estimate was that they were at the garage for half an hour. Gail Wyton confirmed those timings in her statement. Neither of the Wytons nor Mr Robert Mee gave evidence at the trial or the appeal.
Before this appeal Mr Mee took part in a videoed reconstruction of what he did at the garage. That video lasted 8 minutes 11 seconds.
Mr Andrew Zannetos, the garage owner, was unable to remember anything about this visit of the Mees or the Hickeys on that afternoon and the receipt he had given for the £50 deposit left by Vincent Hickey in the name of Galvin was undated.
It was an agreed fact that entries in the day book of the General Guarantee Corporation dated the 20th September 1978 showed that Vincent Hickey, using the name “James Galvin”, had applied for finance for the purchase of a car from Bristol Road Garage. The name appearing in the Corporation’s record beneath “Galvin” is “Mee”. The entries showed that the applications on behalf of Galvin and Mee had been submitted on either the late afternoon of the 19th September 1978 or the morning of the 20th September 1978.
Both Hickeys gave evidence in support of their alibi. Michael Hickey said that while he was at the garage he remembered seeing the cars being put away. The evidence of Andrew Zannetos was that he used to close between 6 pm and 7 pm. It was an agreed fact at the trial that Zannetos’ normal closing time was between 6 and 7 pm.
After the trial evidence became available from members of the Waring family who had a business on the same site as the garage as to variations in Mr Zannetos’s timings for putting the cars away. That evidence was put before the first appeal in the form of agreed facts. It established that there were some occasions when Mr Zannetos was seen to put his vehicles in the compound from about 4.30 pm onwards and that on occasions persons other than Mr Zannetos put the cars into the compound.
Michael Hickey said in evidence that he and Vincent Hickey left the garage at about 5.30 or 5.40 when they were closing the garage and the people doing that were Mr Zannetos and “a Greek, a big fat bloke, really big he was” (Day 16 25C). Vincent Hickey also spoke of a similar person, other than Mr Zannetos. Mr Zannetos’ evidence was that he had no other person working with him at the garage on the afternoon of the 19th September 1978. Subsequent to the trial it was discovered that Michael Hickey’s description of the second man fitted Mr Zannetos’ father in law, Mr Tsolakides, who could have been at the garage at the material time because his own car needed an MOT test.
Thus, while, at the trial, it was the Crown case that neither Hickey had been at Bristol Road Garage on the fatal afternoon, that any such visit had been on a different day, and thus that the alibi was fabricated, by the time of the last appeal the important concession was made which we have already indicated. It was conceded that the Hickeys visit to Bristol Road Garage was on the afternoon of the 19th September 1978 but asserted that the evidence showed that such a visit must have been after 5 pm and, thus, that the particular time did not afford the Hickeys any alibi in relation to the murder of Carl Bridgewater in that they could have gone to the garage after committing the crime.
The Crown had evidence in the form of a statement from Alan Murray, who lived at the flat where Linda Galvin and Vincent Hickey were living as man and wife at Lower Beeches Road, that Vincent Hickey returned there between 5.30 and 6 pm. In a statement of the 24th January 1979 he said the time was between 5 pm and 5.30 when Vincent Hickey arrived home and he, Vincent, was alone. In a statement of the 27th February 1979 he put the time as between 5 pm and 6 pm when Vincent Hickey arrived home. The Crown had originally intended to call Alan Murray but did not do so. His evidence of Vincent arriving home at between 5pm and 6pm was mentioned to the jury in the Crown’s opening.
The Crown also had two statements from Bernard Turner dated the 3rd April and the 8th May 1979, who was at the material time living on a floor below Linda Galvin’s flat, that Vincent Hickey had returned home sometime between 5 pm and 6 pm. Those statements were not disclosed to the defence. The 8th May statement also said that a short time after Vincent came home Mr Turner went up to Linda’s flat and saw both Linda and Vincent there. He did not remember seeing Michael at all that day.
At the earlier end of the alibi Vincent Hickey’s additional notice dated 13th July 1979 put the two Hickeys as leaving the Dog and Partridge at about 3 pm and arriving at Linda’s flat at about 3.20 pm where “present at the premises was one Linda Galvin who had that day taken delivery of a three-piece suite.” It stated that Stephanie Galvin, her 12 year old daughter, had arrived home at approximately 4.10 pm and Vincent Hickey had given her money to buy a glass stand-up ash tray which she had then gone out to buy locally and returned at approximately 4.25 pm. Shortly thereafter, the two Hickeys left and went to the Bristol Road Garage, arriving there between 4.35 and 4.40.
By letter dated the 18th June 1979 Vincent Hickey’s solicitors, in answer to a request by the prosecution for the names and addresses of alibi witnesses, stated that “the two witnesses at the relevant point of time when the murder is supposed to have taken place, Mrs Linda Mary Galvin (a prosecution witness) and Stephanie Anne Galvin (a prosecution witness) were both in Mrs Galvin’s home.”
The prosecution had intended to call both Linda and Stephanie Galvin as witnesses when the trial opened. Linda Galvin’s expected evidence was indicated to the jury in the prosecution opening on the 9th October 1979 when the delivery of the new three piece suite was mentioned. There was also a reference to the evidence of Alan Murray. On the 12th October 1979 the prosecution indicated that they did not propose to call either Linda, Stephanie or Alan Murray. On Tuesday the 16th October 1979, after argument, the judge declined to invite the prosecution to call Linda and Stephanie Galvin but indicated that the defendants solicitors were at liberty to interview, take statements from and call Linda Galvin in their discretion. He also ruled that if the defence did not call her it would be improper for the prosecution to comment on their failure to call her.
Thus, though Linda and Stephanie had given evidence as prosecution witnesses at the committal on the 15th May 1979 and been cross examined by the defence on matters relating to the afternoon alibi, their evidence did not go before the jury in that they were called by neither the prosecution nor the defence.
At the committal, as her evidence in chief, Linda had adopted in evidence her sixth statement dated the 22nd February 1979 in which she stated that: “Neither Vinny or Michael returned to my flat during the morning or afternoon of Tuesday the 9th September 1978″. She also said “I can’t remember whether Michael Hickey was with him (Vincent) when he arrived home that night”
However under cross-examination at the committal she remembered the delivery of the three-piece suite and the purchase of the stand-up ash tray but could not remember whether they had happened on the same day or on consecutive days. She also remembered an accident with some egg and chips on the settee when Vinny and Michael were there but she could not remember if that was the day the suite was delivered but said “it could have been”.
Stephanie’s committal evidence in chief adopted as her evidence her statement of the 3rd December 1978. In cross-examination she remembered the arrival of the suite, did not remember the egg and chips incident and remembered the purchase of the ash tray but could not remember if it was the day the suite was delivered.
The failure to call Linda Galvin is a topic we deal with elsewhere in this judgment but, suffice it to say at this juncture, Linda had at no stage supported in the statements she had made to the police the account of the alibi set out in the 13th July 1979 notice. She had made a large number of statements to the police, not all of which were disclosed. Her statement of the 10th January 1979 said that neither Vincent nor Michael Hickey returned to her flat during the morning or afternoon of the 19th September but that Vincent Hickey returned, so far as she could say, sometime between 6 pm and 7 pm and Michael Hickey was not with him. In a later statement on the 24th January 1979 (when she had remembered about the delivery of the three-piece suite on that day) she could not remember what time Vincent arrived home that day, and said she could not remember whether Michael Hickey was with him “when he arrived home that night”.
Her statement of the 23rd July 1979 said that neither Vincent nor Michael Hickey was at her flat when the suite was delivered and they did not return to her flat that afternoon. That statement also spoke of the glass ash tray which she said Stephanie had bought with some money she, Linda, had given her but also said she had no idea of the day or date when this was purchased.
Also on the 23rd July 1979 Linda Galvin told the police that she had found a receipt four days earlier which showed that on the 19th September 1978 she had paid a deposit of £10 on a carpet: she believed that happened at about lunchtime. Witness statements were taken from her on that day and the 26th July but were not disclosed. Statements were taken on the 24th July from Peter and Norman Townsend who supplied the carpet and confirmed Linda Galvin’s evidence as to the paying of the deposit. These statements were available in the unused material.
Stephanie’s statement of the 24th January 1979 said that on the material afternoon, Vincent Hickey was not there when she came home from school on the day that the suite was delivered. She said that Vincent Hickey came back later but she did not remember the time.
On the day of the committal, the 15th May 1979, after giving her evidence Stephanie made a statement dealing with the questions she had been asked at the committal about the ash tray. In the statement she said she could not remember the day or date when she purchased the ash tray but she did remember seeing it on display in the shop when she went to pay some money into a Christmas Club account. On the afternoon of the committal hearing she had visited the shop and seen her Christmas Club payment book which showed that her first payment was made on the 22nd September 1978. She was sure that when she had visited the shop and had seen the ash-tray, the purpose of her visit was to pay her Christmas Club. She said that she could remember getting home from school and seeing the new suite and to the best of her knowledge this was not the same day as she fetched the ash tray: that statement was not disclosed.
After the committal the prosecution took statements on the 15th and 16th May 1979 from those involved in running the shop which sold the ash-tray. These showed that Wednesday was early closing day and therefore the ash-tray could not have been bought on Wednesday the 20th September 1979 and the first date when Stephanie could have bought it was when she actually opened her Christmas Club account on the 22nd September 1979. Those statements were not served but the makers’ names were notified to the defence.
In a statement of the 26th July 1979 Stephanie said that she could not remember the incident happening where Michael Hickey was supposed to have spilt his tea on the 3 piece suite. (It is clear from Telephone Messages in this case that she had at one time remembered such an incident and had spoken of it to her mother and this is covered elsewhere in this judgment).
Both Vincent and Michael Hickey gave evidence in support of the alibis that had been set out in their notices. As we have already indicated, neither Linda nor Stephanie Galvin was called by the defence, nor was Alan Murray. Linda Galvin was asked by Vincent Hickey’s solicitor on the 17th October 1979 to make a statement for the defence but refused.
As to ground 2 of the Grounds of Vincent Hickey, the Crown conceded before us, as they did in the first appeal, that fresh evidence showed that Michael Hickey and Vincent Hickey probably did visit Bristol Road Garage at some time on the day of the murder but that there was no evidence independent of them which provided them with an alibi for the murder by placing them at Bristol Road Garage at a time inconsistent with having taken part in the raid on Yew Tree Farm. The Crown however accepted that the jury might possibly have taken a different view of their defences if the jury had known that they were probably telling the truth when they said they had been to Bristol Road Garage on the day of the murder.
The Crown accepted that they could not properly resist the submission that:
(a) the points relied on by the prosecution at the trial may have persuaded the jury that the Hickeys were lying when they said they had been to Bristol Road Garage on the 19th September 1978;
(b) if the jury had known that the Hickeys were probably telling the truth when they said they had been to Bristol Road Garage on that day then (even if the jury did not believe they had been there until sometime after 5 pm) they might have taken a different view of their cases;
(c) if, however, the jury believed the Hickeys were lying about having visited Bristol Road Garage on the 19th September 1978 there would have been an inevitable “knock-on” effect on their credibility generally.
The Crown submits that there was no evidence independent of the Hickeys themselves which provided them with an alibi for the murder in the sense of placing them at Bristol Road Garage at a time inconsistent with their having taken part in the raid on Yew Tree Farm. It submitted that the intruders must have left Yew Tree Farm by about 4.45 pm and pointed to the acceptance in Michael Hickey’s skeleton argument that it would have been possible to travel from Yew Tree Farm, via Linda Galvin’s home, and arrive at Bristol Road Garage by 5.30 to 5.45 pm. Thus the Crown asserted that the independent evidence would have to place the Hickeys at Bristol Road Garage before 5.30 to 5.45 pm and it did not do so. There was nothing in the independent evidence to establish how long elapsed between the departure of the Mees’ party and the arrival of the Hickeys. The Crown submits that the combined effect of the evidence tends to confirm rather than disprove the prosecution case at trial that the Mees did not leave the garage until about 5 pm and the Hickeys could not therefore have been at the garage as claimed in their alibi notices from about 4.35 to 4.40 pm.
We accept that such is the effect of the independent evidence in this case. The evidence of the Mees’ party therefore effectively disproved the Hickeys claim to have been at Bristol Road Garage from 4.35 to 4.40 pm onwards. The matter does not end there, however, since there has to be considered the later part of the alibi and, in particular, the time after 5 pm.
As to that period, the evidence of the Warings as to the variable times that Mr Zannetos put away his cars means that the Crown cannot now rely on Michael Hickey’s evidence that the cars were being put away as establishing that he was not at the garage until 6 pm. The evidence now is that the cars were put away at anytime between 4.30 pm and 7 pm.
There is also the evidence both of Alan Murray and Bernard Turner that Vincent returned home that afternoon (implicitly for the last time) between 5 and 6 pm.
The Crown asserts that it was possible for the Hickeys to have committed the offences and left Yew Tree Farm at about 4.45 pm, then returned to Birmingham to pick up Linda Galvin’s car so as to reach Bristol Road Garage by around 5.30 pm. then spent about half and hour at the garage and returned to Linda Galvin’s flat at about 6 pm.
The appellants assert that the Crown’s version builds in a whole series of assumptions in favour of the Crown which the court should reject. First, it wrongly makes the assumption that the intruders left no later than 4.45 despite the evidence of Phelps, Steven Bridgewater and Clarke which placed vehicles at the farm as late as 5.15 pm. Second, a journey time of 45 minutes or less needs to include the time taken to get back to the Dog and Partridge (35 minutes at least), dispose of the van, pick up Linda Galvin’s car and drive to the garage (about 10 minutes drive). The appellants say that so short a time is itself extremely unlikely. Third the argument assumes a time at the garage of less than 30 minutes which is the period the Crown suggests for the visit of the Mees in which no test drive was taken. In the Hickeys’ case both Linda Galvin’s car and the potential purchase car were test driven. Fourth, the Crown’s argument has to contend with the fact that both Alan Murray and Bernard Turner state that Vincent was back home before 6 pm, at a time between 5 and 6 pm. The appellants submit that it is impossible to reconcile the evidence of Alan Murray and Bernard Turner with the Crown’s submissions on timing.
The appellants do not concede that the Crown has established that the Mees could not have left before 5 pm.
The appellants also argue the unlikelihood of the appellants calmly engaging in the purchase of a car immediately after the commission of so horrifying a murder.
The appellants submit that the Crown can no longer rely on its submission at trial that the falseness of the alibi provided independent corroboration of the Crown’s case. They say that the Crown cannot show the alibi to be false even if, at this point of time, the defence cannot prove it to be true.
We have to say that we are satisfied that the appellants’ arguments on this point must prevail. While the Crown had disproved the earlier part of the garage alibi up to 5 pm when we are satisfied, on the material before us, that the Mees’ party left the garage, the position thereafter is that the independent evidence did not establish that the Hickeys could not have been at the garage at a time inconsistent with their being at Yew Tree Farm at the time of the murder.
In those circumstances it is plain that the Crown case at trial, that the Hickeys were never at the garage on the material day and that the whole alibi was invented, was rightly abandoned at the first appeal, and that that allegation and the jury’s finding on it is likely to have had a highly adverse effect upon the credibility of the Hickeys in matters such as the presence of the second Greek man at the garage and the time of the putting away of the cars.
It follows that the Crown was right to make the concessions it did at the start of this appeal and the appellants are right in their submissions that this casts further doubt on the safety of their convictions for the reasons they have argued.
We cannot go so far as to conclude, as we were invited to do, that the evidence as to the alibi establishes the truth of the alibi. There are matters of great suspicion which remain. The earlier putting forward by both Hickeys of alibis now admitted to be false is a matter of some importance. That is particularly so in the case of Vincent Hickey who was first asked to account for his movements on the fatal night on the 14th October 1978. That was not only just under a month after the killing but it was also only a fortnight and a day after the time he sent Mr Bernard Turner back to the garage with a letter he wrote that day to try to get the £50 deposit returned to him: the date of Mr Turner’s being sent on that mission and returning with a cheque for £40 which Vincent Hickey cashed with the milkman was the 29th September 1978. In the light of what must have been to Vincent Hickey the clear significance of the Bristol Road Garage transaction throughout the month of September, it is more than surprising that when asked on the 14th October to account for his movements on the 19th September he spoke only of Birmingham fish market and the Dog and Partridge.
In the case of Michael Hickey it is no less surprising that on a day when he, a 17 year old, had taken part in two transactions as to cars, (the one in the afternoon being at the Bristol Road Garage and the earlier one, as overheard by Prison Officer Kelly on the 10th April 1979, “on the Tuesday I went to Ruben’s about finance”), a day which must have been most unusual for one so young to be taking part in two separate purchases of cars, one for himself (the first time he had ever tried to buy a car) and one for Linda Galvin, that it should totally have gone from his memory when he was asked to account for his movements on the fatal day.
These questions are matters raised in this appeal which cannot be answered by anything put before us or ruled on by this court. Nevertheless, the Crown’s reliance at trial on the alleged falsity of the claims by the Hickeys to have been at the garage on the 19th September 1978 is another reason, on the material before us, for saying that their convictions are now unsafe. We cannot, as a court of review, come to conclusions as to why there were first put forward false alibis or as to why the alibi of the Bristol Road Garage was put forward so late.
Non-disclosure of material relevant to the alibi
As we have already indicated the Crown did not disclose certain statements of Linda Galvin and of Stephanie Galvin as well as statements of Bernard Turner in relation to the alibi being put forward by the Hickeys. The Crown did not disclose the contents of two telephone messages (TMs 15303 and 15369) or the statements of Valerie Fulford and Michael and Pauline Moore, the witnesses who worked at “Pauline’s”, the shop which sold the ash tray to Stephanie.
We have already indicated that we accept the Crown’s account in relation to the history of disclosure requirements and in particular the Crown’s account of the practice relating to disclosure extant at the time of the trial.
In relation to Linda Galvin, copies of her first five statements from the 4th December 1978 to the 24th January 1979 were included in the unedited statements served on the 19th July 1979 and re-served on the 24th August 1979. Her sixth statement dated the 22nd February 1979 was the statement she had adopted in evidence at the committal proceedings on the 15th May 1979. As to her last four statements, dated the 10th May 1979, 10th July 1979, 23rd July 1979 and 26th July 1979 there is no evidence that such were ever disclosed to the defence although copies were sent by the police to the DPP. Equally the two Telephone Messages (TMs) 15303 dated 20th March 1979 and 15369, dated 4th May 1979 were not disclosed.
We shall deal first with the telephone messages and then with the statements.
TM 15303 states that there have been no threats made, apart from a ‘phone call calling Linda Galvin a bastard and goes on to say that:
“She states she has had no threats or approaches from the Hickey family.
Galvin says she has not visited Vincent Hickey for some time but on her last visit to him at Winson Green Vincent told her that both he and Michael Hickey were at her flat on the afternoon of 19.9.76. when her daughter Stephanie returned from school at about 4 pm. Galvin states she will not support this story but apparently her daughter Stephanie told her that she thought that this was so because Michael spilt some egg on the three-piece suite.”
The message later concluded that she did not give the impression of being as close to the Hickeys as she had previously been and had had a nasty letter from Vincent and had not visited him since.
TM 15369, dated 4th May 1979 records that Linda had been told by Stephanie that Stephanie believed Vincent to have been in the flat when she got home from school. The message goes on:
“Before Stephanie made a statement they talked it over and went through what happened with Michael spilling egg on the new settee. Linda thinks that she talked her daughter out of Vinny being at home when she came back from school and she has therefore said that he wasn’t, to go along with what Linda had said. Vinny is aware of what Stephanie thinks and this is no doubt why he wants them calling.
(Linda cannot remember but her daughter says
“Yes he was at home”).”
Later in the message it is recorded that:
“She has been expecting a visit from Joe over the alibi, they have been telling her that it was that Tuesday when she went with Michael to stand guarantor for a car at Reubens Garage. She does remember going but not which day it was.
There is little doubt she is afraid of what Joe will do now or after the trial, she is more afraid of Nancy Goodridge who she believes has been making obscene calls to her. As a result she has gone ex-directory…….. she had also heard Joe talk of beating up one of the Dog crowd, a chap who has got a scar on his forehead, she didn’t seem to want to discuss this too much she appeared surprised that I didn’t know.
She has told a friend of hers, Ray Callow about her fears of Joe and his crowd Callow was apparently responsible for a knife attack upon Joe some years ago and has told Linda to call him anytime she is in trouble.”
We are satisfied that in 1979 it was not the practice to disclose the contents of records of ongoing police investigations such as the telephone messages in this case and we are satisfied that despite the appellants arguments, no criticism can legitimately be laid at the Crown’s door in failing to disclose these matters. We have quoted them in some detail only for their relevance to later considerations as to why the Crown elected not to call Linda or Stephanie Galvin as prosecution witnesses and for the further light they may shed on the safety of these convictions
The first statement not disclosed of Linda Galvin was dated the 10th May 1979 and dealt mainly with her purchase of a green Vauxhall car in October 1979 in which her 1100 was part exchanged. She said that she could not remember the date but it was not the 19th September because she was at home all that day, the day that the suite was delivered and Vincent was using her 1100 for his work.
The statement of the 10th July 1979 merely confirmed the truth of her earlier statements. The statement of the 23rd July 1979 referred to the finding of a receipt for a carpet deposit of £10 on the 19th September 1978. It said that on that day she had been to a public house with Alan Murray at lunchtime and had then gone on to the carpet shop. She said if the date was correct she must have got home early in the afternoon because of the suite delivery. She remembered the spilling of egg on the new suite but not the day or date. She had no idea of the day or date when the ash tray had been purchased and she said that the Hickeys did not return to her flat on the afternoon of the 19th September 1978. (As a result of this statement the police took statements from those who worked in the carpet shop).
The statement of the 26th July 1979 stated that after she had paid the carpet deposit she had gone with Alan Murray to the Dog and Partridge looking unsuccessfully for Vincent Hickey and had gone on to a club between 1.30 and 2.00 where she was joined by Vincent Hickey and where they stayed till 3 pm. Alan Murray had already gone home because he was not feeling well. She was unsure if Michael Hickey had come into the club with Vincent Hickey but she remembered meeting Michael Hickey and that the three of them had then returned to her flat.
The Crown accepts that these statements should have been disclosed but submits that the non disclosure had no effect because the statements would not have afforded any alibi. The defence submit that the statements demonstrate that Linda Galvin could not remember her own or the Hickeys’ movements on the 19th September. They submit that those statements afford some support to their alibi.
As to Linda’s account of lunchtime movements on the 19th September the Crown say it is clear that she is talking about a different day since on that day Alan Murray had been to hospital by bus, not using his own car, and had spent the rest of the day at the flat after 12.30 pm, much of it in bed. The Hickeys own evidence at trial was that they were using Alan Murray’s car between 9 am and 3 pm. It was further the Hickeys evidence that they did not meet up with Linda at any stage out and about or travel back to the flat with her but in fact found her there when they arrived.
We are satisfied that, while the failure to disclose these four statements of Linda Galvin is regrettable, that failure did not make any difference to the proceedings at trial, since those statements did nothing to support the alibi put forward at the trial.
The same is true of the equally regrettable failure to disclose the statements of Stephanie Galvin made on the 15th May 1979, 10th July 1979 and 26th July 1979. That of the 15th May 1979, as we have already said, was made on the day of the committal and immediately after it and a visit to Pauline’s where a reference to the Christmas Club payment book showed Stephanie as making her first payment on the 22nd September 1978. The statement went on to say that she only saw the ash tray when visiting the shop to pay her Christmas Club, and therefore concluded that “I can remember getting home from school and seeing the new suite and to the best of my knowledge this was not the same day as I fetched the ash tray”. The statement of the 10th July 1979 had Stephanie adopting her previous statements and not wishing to alter them in any way. That of the 26th July 1979 said that she could not remember the egg-spilling incident.
The names and addresses of Pauline Moore, Michael Moore and Valerie Fulford, the witnesses from “Pauline’s”, were provided to the defence, as is apparent from the attendance on the 26th June 1979 of Michael Hickey’s solicitor Mr Gilkes at the shop to take witness statements from Mr Moore and Mrs Fulford. Whether those statements established that the shop was closed on Wednesday afternoons is not known because such defence statements have not been disclosed. Nor is it known whether they disclosed that Stephanie’s first payment on her Christmas Club account was not until the 22nd September 1979. However it is clear that the failure to disclose those statements of Stephanie cannot have effected proceedings at the trial since they merely served to reinforce the prosecution case that the purchase of the ash tray could not have taken place on the 19th September 1978, and therefore could play no part in any alibi of the Hickeys for that date. Indeed the statements tend to contradict details of the alibi given by the Hickeys during their evidence.
Another witness, whose statements were not disclosed, was Bernard Turner who provided two statements on the 3rd April and 8th May 1979. It is conceded that both statements should have been supplied. The earlier one dealt with Vincent Hickey’s request to him on the 29th September 1978 to take a letter which Vincent Hickey then wrote to the Bristol Road Garage to recover the £50 deposit which had been paid and Turner’s return on the same day with the cheque for £40 for part of the deposit which he then gave to Vincent Hickey. Turner was not called but the return of the deposit was proved by other evidence in the trial.
His later statement dealt with the day of the murder, with Alan Murray going to hospital in the morning, and with a specific memory of Turner’s that Vincent arrived home:
“on this day at sometime between 5pm and 6pm. I thought this unusual because it was very strange for him to be out all day. From my experience he would normally leave the flat during the morning to go and drop his workmen off on a job and then return home”.
Later he said he did not remember seeing Michael on that day.
We accept the Crown’s submission that, while those statements should have been disclosed, the failure so to do did not have any material effect on the trial. The second statement did not assist the defence of either of the Hickeys and the first underlined the surprising lack of memory of the Bristol Road transaction when Vincent Hickey was asked to explain his movements on the material date only two weeks and a day after Vincent Hickey had sent Mr Turner to recover the deposit.
On the subject of non disclosure, Counsel for Vincent Hickey submitted that there was a cynical perversion of the course of justice in that, while the Scenes of Crime Officer DS Potts had made two separate witness statements both dated 15th January 1979, that served on the defence did not refer to the wrist watch of Carl Bridgewater which was removed at post-mortem, or for instance, to the receipt of a blood fibre marked “BG”. He sought to submit that that was, in some way, intentional in order to poison the mind of Linda Galvin against the appellants in that she, when interviewed by the Staffordshire Police in October 1988, had been under the impression that one of the appellants had taken the boy’s watch. We see no basis which could justify the allegation of deliberate and cynical non disclosure that was made in relation to this matter.
The Failure to call Linda Galvin
It is the submission of both Hickeys that the failure of the Crown to call Linda Galvin was wrong in law, was not based on full and adequate disclosure of all relevant factors which would have supported the case for calling her and was not justified by any new post trial rationalisation because there is no evidence that she had been intimidated. The Court is invited to say that since the discretion was not properly exercised by the trial judge, the Court can now decide how that discretion should have been exercised (Archbold (1997) 7-100). The Court is invited to find that fairness required that Linda Galvin should have been called or some mechanism devised so that no adverse inference could have been drawn by the jury on her absence from the witness box. Further the Court is invited to find that Stephanie’s initial recollection supporting the alibi should not have been withheld from the defence and the jury. Further it is said that the convictions are unsafe in that the likely adverse inference drawn at trial that the Galvins would not have supported the alibi does not represent the full picture.
In order to come to grips with the Crown’s decision not to call Linda Galvin, her daughter Stephanie, and their lodger, Alan Murray, it is necessary to go back to a time before the actual trial started, when submissions were made by defence counsel that the Chapel Farm allegations should not be tried together with those as to Yew Tree Farm. Those submissions were successful and the learned judge ordered severance of the Chapel Farm allegations. The two Galvins and Murray had made statements which related to both locations and the crimes committed at each. Significant re-writing of the note for the Crown opening was no doubt required. That note read, both before and after the adjustments that were no doubt made:
“Linda Galvin recalls this day that Vincent and Michael went off in her beige 1100 car in the morning and that she remained at home for the rest of the day, during the afternoon of which a new three-piece suite was delivered. She is unable to recall the time that Vincent Hickey arrived home. Alan Murray recalls that Vincent Hickey arrived home between 5 and 6 pm.”
That was what the jury were told in the opening on the 9th October 1979.
On Friday the 12th October Counsel for the Crown, in dealing with the list of witnesses for that day announced that:
“although Linda Galvin and Alan Murray appear on the list as those witnesses whom the prosecution intends to call, in fact in the light of developments in this case the prosecution does not propose to call either Linda Galvin or Alan Murray.”
He also stated that while both would have been very important witnesses in relation to the Chapel Farm matter, in the light of the previous day’s cross-examination of witnesses from the Dog and Partridge as to the Hickeys leaving that public house about 3 pm and having looked carefully at the relationship between Linda Galvin and Vincent Hickey, the conclusion had been reached that the Crown did not propose to call either Linda Galvin or Alan Murray as witnesses for the prosecution. He reserved his position as to whether later in the trial he might seek to call either one or both and he added that his remarks applied also to Stephanie Galvin.
Counsel for Vincent Hickey, submitted that the prosecution had not rightly exercised their discretion in deciding not to call Linda Galvin and submitted that the same argument would stand for Stephanie. He indicated an intention to make a separate submission in relation to Alan Murray but in the event did not do so. Counsel for Michael Hickey, made similar submissions and relied on the case of R v Nugent (1977) 65 Cr App R 40 and R v Oliva (1965) 49 Cr App R 298.
Prosecution Counsel referred to the two alibi notices served on behalf of Vincent and to a letter of the 18th June 1979 and, in particular, its third paragraph. He said:
“It is the submission of the prosecution that it is a reasonable inference to be drawn from that letter and the other alibi notice which said in turn that between 3.30 and 4.30 or thereabouts Vincent and Michael Hickey went to Linda Galvin’s home and it is a reasonable inference that they anticipate that Linda Galvin, if called to give evidence, will say they were there. I do not know what she will say in relation to them”
He then went on to say:
“On the issue of the alibi it would not be right to say I refuse to call her because she is a witness upon whose evidence I could not ask any jury to form any conclusion. It is right in my submission that the prosecution should take the view, having regard to the nature of the alibi notice, having regard to what she has said in her statement already that, if she is called by the prosecution in relation to what time Vincent Hickey arrived home that afternoon, she may say “I didn’t see him until 7 or 8 o’clock that night. I simply cannot remember what time he came back” but on the other hand in my submission there is a grave risk in this case that she might say: “Oh yes I remember him coming back at half past three ” and give chapter and verse as to why she did remember it.”
The Judge said: “It seems to me to have no relevance to the matter at all if the prosecution say she has supplied statements about totally different matters and about offences which are not within the subject of this trial and on this the prosecution think she is a credible witness. The issue is, as I see it, do the prosecution think she is a credible witness on the issues with which we are concerned in this trial?
Mr Cox: “The answer to that particular question is no the prosecution do not.
Mr Justice Drake: “That seems to me to be the whole point”.”
Counsel for Vincent Hickey, soon after, expressed the view that, if the Crown were taking the view that she was not a witness of truth, they had taken a long time to reach that view. He added that such was not their view when the case started when the matter was summarily discussed a few days before. To this prosecution counsel replied:
“Your Lordship will remember that in the course of this trial the opening had to be trimmed rather quickly in relation to expunging all matters in relation to Chapel Farm. I regret that I did open what my learned friend Mr Tucker has indicated. That, with hindsight, I ought not to have opened but I am afraid with the other matters that were pressing upon us, the words that my learned friend has drawn to your Lordship’s attention were undoubtedly spoken by me because I certainly in my copy of the opening have not got a line through them.”
He added later that he did not want the court to think that he had opened the passages inadvertently, he had simply not applied his mind to it.
The judge ruled:
“I have been caused some anxious consideration by this matter but I have come to the conclusion that this is not a case where I should interfere with the discretion, wide as it is, of the prosecution. They will no doubt consider, as they have done already, whether it is right to call her. I am not going to invite them to do so. Apart from the fact that the prosecution have a wide discretion I am concerned I think above all as to where justice lies in the course that I ought to take and my ruling does not mean that Linda Galvin cannot give evidence in the court in this trial. On the contrary the defendants’ solicitors are entirely at liberty now to interview the lady and take statements from her and to call her in their discretion if they think it is in their interests to do so.”
That was the effect of the ruling both in relation to Linda and Stephanie and the judge rightly pointed out that he had not been invited to pursue the matter with regard to Murray. He noted in his ruling that “the Crown have now stated to me that in relation to the principal matter of the alibi evidence they do not accept Linda Galvin as a credible witness”
The argument for the appellants starts with the case of R v Oliva (1965) 49 Cr App R 298, in which it was held that, where the name of a witness appears on the back of an indictment, if his evidence is capable of belief, it is the duty of the prosecution to call him, even though the evidence that he is going to give is inconsistent with the case sought to be proved. The prosecution’s discretion must be exercised in a manner which is calculated to further the interests of justice and is at the same time fair to the defence.
The appellants drew support from R v Russell-Jones (1995) 1 Cr App R 538 where at p 544 Kennedy LJ said that:
“(4) The next principle is that the prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason in any instance, the prosecutor regards the witnesses evidence as unworthy of belief.”
The appellants also cited R v Balmforth (1992) Crim LR 825 C.A. and Nugent (1977) 65 Cr App R 40 and submitted that Linda Galvin was a witness of primary fact whose evidence was “essential to the unfolding of the narrative on which the prosecution is based” (per Lord Roche in Seneviratne v R [1936] 3 All ER 36 at 49). At page 48 in Seneviratne, Lord Roche said:
“Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narratives on which the prosecution is based, must, of course, be called by the prosecution whether in the result the effect of their testimony is for or against the case for the prosecution.”
That case was, in fact, considered in Russell-Jones where Kennedy LJ at p 543 said:
“It is not the case that if, as in this case, part of the evidence is capable of belief then the prosecution has no discretion. It still has a discretion to exercise, in a manner calculated to further the interests of justice, and at the same time be fair to the defence. So in Nugent (1977) 65 Cr App R 40, Park J, held that the prosecution were not required to call alibi witnesses. Relying on what was said by Lord Roche in Seneviratne, Park J at page 44 said that the exercise of the prosecution discretion depended upon the particular circumstances of the case.”
Kennedy LJ in Russell-Jones set out seven principles which emerged from the authorities and from rules of practice of which the last four in particular seem to us to be particularly relevant in this case:
“(4) The next principle is that the prosecution ought normally to call or offer to call all the witnesses who give direct evidence to the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness’s evidence as unworthy of belief. In most cases the jury should have available all that evidence as to what actually happened, which the prosecution, when serving statements, considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the prosecution has discarded. For example the evidence they may give, albeit at variance with other evidence called by the Crown, may well be detrimental to the defence case. If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say “incredible”, then his evidence cannot help the jury assess the overall picture of the crucial events: hence it is not unfair that he should not be called. …………….
(5) It is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case. A prosecutor may reasonably take the view that what a particular witness has to say is at best marginal.
(6) The prosecutor is also, as we have said, the primary judge as to whether or not a witness to the material events is incredible or unworthy of belief. It goes without saying that he could not properly condemn a witness as incredible merely because, for example, he gives an account at variance with that of a larger number of witnesses and one which is less favourable to the prosecution case than that of the others.
(7) A prosecutor properly exercising his discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown relies. To hold otherwise would, in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown’s own case. No sensible rule of justice could require such a stance to be taken.”
In Nugent the defendant had been committed for trial on written statements which included those of eight witnesses as to whom the defence served a notice of alibi including the names of all eight. At the trial the prosecution decided not to call the eight witnesses. The defence applied to the trial judge to exercise his discretion and invite the prosecution to call those witnesses and, if that was refused, then for the Judge himself to call the witnesses.
The court, again applying the dictum of Lord Roche in Seneviratne, held that the exercise of the prosecution’s discretion depended upon the particular circumstances of the case and that there was no duty on the prosecution to call those witnesses and the court would not invite them so to do. Park J said at page 44:
“In my judgment, the exercise of the prosecutions discretion, as Lord Roche said, depends upon the particular circumstances of the case. ….. Almost certainly the calling of the eight witnesses by the prosecution would be liable to cause confusion in the jury’s mind about the nature of the prosecution case. It would be to impose upon the prosecution the function of both prosecution and defence. In my judgment in those circumstances there is no duty on the prosecution to call those witnesses and I do not invite them to do so.”
In Balmforth, prosecuting counsel had decided to tender a witness on the basis that he was a witness capable of belief even though not supporting the prosecution version of events. The witness had driven the appellant away from the scene of the crime. The judge intervened and referred counsel to Nugent and indicated that the decision was counsel’s; prosecution counsel then decided not to call the witness, who was thereafter called by the defence.
In allowing the appeal the court held that the prosecution had a discretion in determining whether witnesses were capable of belief: if they were so capable, the prosecution was under a duty to call them and either examine them or tender them for cross- examination. The court held that there were examples of witnesses who were wholly unreliable and whom the prosecution were entitled not to call. The court went on to hold that prosecuting counsel had properly exercised his discretion in determining the witness was capable of belief. The judge was wrong to suggest that he had any remaining discretion not to call the witnesses after coming to that conclusion. In that case the court went on to allow the appeal on the basis that the judge was not wholly happy with the prosecution case and that the defence was under the disadvantage of having to call the witness and not being able to cross-examine him, for example, on a point on which he favoured the prosecution case.
We have come clearly to the view that the Crown was entitled to conclude that, on the particularly material matter of the alibi of the Hickeys, the evidence which Linda and Stephanie Galvin were likely to give was incapable of belief. They were entitled to take that view on the basis of the evidence given by both witnesses at the committal, when, although they were not asked directly to confirm the alibi, they were asked questions clearly laying the ground for such evidence. They were further entitled to come to that view from the way in which the notices of alibi had developed and from the letter of the 18th June 1979 to which Mr Cox drew the court’s attention.
Neither Linda nor Stephanie Galvin had been named in either Vincent’s or Michael’s notice of alibi which were separately served in May 1979. Though the Galvins were not identified by name in either of those first two notices, Linda Galvin’s home at 35/4 Lower Beeches Road was identified as the place where the Hickeys were from about 3.20 pm to 4.20 to 4.30 pm and then after about 5.40 pm.
Their names first appeared as alibi witnesses for the defence in the letter of the 18th June 1979 and reference was made to their evidence at the committal in that letter.
Further, their names, (with additional details that on the material day Linda Galvin had taken delivery of a three-piece suite, Stephanie had purchased a glass stand up ash tray and both Linda and Stephanie had had tea with the Hickeys during which Michael had dropped egg on the new suite) were set out in Vincent Hickey’s additional notice of alibi dated the 13th July 1979.
Faced with those indications of what it was contemplated by the defence that Linda and Stephanie Galvin would say in the witness box, if called, the Crown was entitled to come to the view that, despite all the statements it had from Linda Galvin indicating the Hickeys’ absence from her home on that particular afternoon, her evidence, if called, would support the proposed alibi. Based on all the material they had, prosecuting counsel were entitled to come to the conclusion that such evidence in support of the alibi would be contrary to their statements and therefore untruthful.
We consider that the Crown was also entitled to have regard to the contents of TM15369, to which we have already referred in detail, that Linda was on the 4th May 1979 afraid of what Joe Hickey would do “now or after the trial” and “about her fears of Joe and his crowd”.
Evidence was put before us in schedule form of the information the Crown had had about Joe Hickey and his associates which would have been relevant in coming to a conclusion as to whether or not a witness might be intimidated. The emphatic effect of that schedule was somewhat watered down by the schedule which Mr Fitzgerald put in in opposition, but we are of the view that there was a sufficient basis for the Crown to consider, on all the evidence before it, including the letter of the 18th June and the alibi notices, that it was likely that the evidence of Linda and Stephanie Galvin would not be truthful, that is, capable of belief.
Effectively there was material before the Crown for it properly to consider her to be likely to be a witness in support of the alibi, the calling of whom would be liable to cause confusion in the jury’s mind about the nature of the prosecution and impose upon the prosecution the duties of both prosecution and defence in a manner analogous to the cases we have cited.
We are unable to conclude that the prosecution was under any duty in these circumstances to call Linda or Stephanie Galvin before the jury. As Kennedy LJ said in Russell-Jones, at p545 on a slightly different matter:
“To hold otherwise would, in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown’s own case. No sensible rule of justice could require such a stance to be taken”
We note the brief reference made to the Galvins in the prosecution’s opening, which we consider unfortunate, but which cannot have had any lasting effect on the minds of the jury. We accept that it would have been better had such references been deleted in the general whittling down exercise which the Crown had to conduct on its note for opening once the Chapel Farm counts were severed. We note also that the decision not to call either witness was a decision which, as counsel for Vincent Hickey had said at the trial, came late. Equally prosecuting counsel was, perhaps, a little less adept in the marshalling of his arguments in his submission to the judge than usual. However, the reasons for the decision were placed before the jury. They were possibly more tidily and more forcefully put in the contemporary note made by his junior at the trial, Mr Coker, in the document which we have seen.
Mr Coker’s note rightly concludes that these witnesses would not have been included in the depositions if the Chapel Farm and Tesco offences had not been on the indictment. It goes on:
“In the light of the ruling in respect of counts relating to those offences the prosecution may properly exercise its discretion not to call them in respect of counts 1 and 2. The prosecution has good reason to believe that, if called the evidence given by Linda Galvin Alan Murray and Stephanie Galvin would be contrary to their depositions and incapable of belief. The accounts of Linda Galvin, Alan Murray and Stephanie Galvin in their depositions are inconsistent with the alibis contained in the alibi notices served on behalf of Vincent and Michael Hickey. ….. The defence can only wish that Linda Galvin, Alan Murray be called because it is expected that they will go back on their statements to police and support the alibis. Should they do so they would be in precisely the position in which the eight witnesses in Nugent would have been if called by the prosecution. Like the appellant in Nugent the alibis given by Vincent and Michael Hickey are the third account of their movements that day.”
We are perfectly satisfied that the Crown was entitled, in its discretion, to conclude that the evidence of the Galvins (and for that matter Alan Murray) was likely to be incapable of belief. We also conclude that the arguments were satisfactorily put to the learned judge in relation to the Crown’s wish not to call them. We are further of the opinion that the non disclosure of some of the statements of Linda Galvin and Stephanie Galvin and of the two TMs, to which we have referred, could not have had any effect on the way in which the learned judge ruled on the argument as to whether or not the witnesses should be called by the Crown.
We consider that the judge properly exercised his discretion on the material which was before him and that no further material, as submitted by the appellants, would have altered the exercise of that discretion. The judge would have come to the same conclusion if that material, including TM15369 which spoke of Linda Galvin’s fears over Joe Hickey, had been put before him.
If Linda and Stephanie Galvin had been called by the prosecution the overall effect of their evidence would have been damaging to the defence in any event but it would have been even more damaging had they been called by the defence. For example, had Stephanie Galvin been called for the defence (and had the defence known of her earlier recollections of the egg-spilling incident), cross-examination of her as to the starting date of her Christmas Club not being until 22nd September 1978, three days after the murder, would have ruled out any possible support for the alibi put forward.
Ground 3 — The Admissibility of Vincent Hickey’s Confessions
Counsel for Vincent Hickey, Mr Alun Jones QC, submitted that the case against him rested largely on inadmissible confessions and other admissions against interest which were involuntary and in breach of fundamental provisions of the common law governing police interviews and of the Judges’ Rules.
He conceded that between the 4th and 11th December Vincent Hickey was recorded has having made oral admissions to the prejudice of the co-accused and of himself relating to the Yew Tree Farm offences. Hickey admitted at his trial that he had made many of those admissions but did not accept that the account was a full account. Counsel accepted that no argument had been presented to the trial judge or to the first appeal that those admissions ought not be have been admitted in evidence. The first time these submissions of inadmissibility were made was therefore before us at this appeal. It was accepted by his Counsel that at his trial Vincent Hickey was deliberately seeking to provide information to the police about the killing of Carl Bridgewater so that he could obtain some sort of immunity from prosecution for the Chapel Farm offences and possibly also for the offences at Yew Tree Farm.
Vincent Hickey was arrested on the evening of the 4th December 1978 on suspicion of involvement in the Chapel Farm deception on the 30th September and the Chapel Farm robbery on the 30th November 1978. He was charged with those offences at 2.20 pm on the 5th December 1978. He was remanded by the Magistrates into police custody on the 5th December and again on the 8th December. Three days later on 11th December 1978 he was remanded to prison, again in respect of the Chapel Farm offences. On Friday 12th January 1979, at Wombourne Police Station, he was charged with the murder of Carl Bridgewater.
At the outset of his interview on the 4th December 1978 in relation to the Chapel Farm offences he was cautioned. Towards the close of that interview he was arrested for those offences. He spent the night in custody for those offences. In the course of that night from 10.55 pm to 12.45 am he had lengthy conversations with DCI Knight which started off with references to Chapel Farm which caused Mr Knight to remind him of the previous caution given only four and a half hours earlier. He then volunteered information about the Tesco robbery and also introduced into the conversation the Bridgewater murder telling them that his brother Michael had said “the older one” (meaning, it was accepted, Robinson) “did it”.
There was also a further short interview at 10.50 am that day before he was taken to the Magistrates’ Court in the afternoon of the 5th December. That interview was again under caution.
While Counsel for Vincent Hickey submits that the crucial interview was the first one held on the 8th December, he nonetheless submits that there were breaches of the Judges’ Rules and of Section 38(4) of the Magistrates’ Courts Act 1952 in the 10.55 pm 4th December interview which mean that the evidence was in fact inadmissible and he further submits that all subsequent interviews are tainted by this illegality.
As to that interview at 10.55 pm on the 4th December and the one following at 10.50 am on 5th December Mr Jones complains of a breach of Principle (d) of the preamble to the Judges’ Rules and of Section 38(4) of the Magistrates’ Courts Act 1952. As to the earlier interview, he also submits that it was not recorded in full and that the caution was defective. As to the second interview, he submits that there was a failure to record the time of the interview.
Principle (d) of the Judges’ Rules, as we have already noted, states:
“That when a Police Officer who is making enquiries of any person about an offence has enough evidence to prefer a charge against that person for that offence he should without delay cause that person to be charged or informed that he may be prosecuted for that offence.”
Section 38(4) of the Magistrates’ Courts Act 1952 enacts that:
“Where a person is taken into custody for an offence without a warrant and is retained in custody he should be brought before a Magistrates’ Court as soon as practicable.”
We have already dealt in this judgment with the fundamental rule of admissibility of the statement of an accused, that the statement must have been voluntary and with the fact that the Judges’ Rules were rules of practice, breaches of which were relevant to (but not conclusive of) whether the statement was voluntary.
Counsel submitted that on the 4th December there was a wealth of suspicion in the minds of the police investigating the Yew Tree Farm offences that Vincent Hickey was involved in them. He referred to the draft opening, to Vincent Hickey’s questioning on the 15th October about the Rickmansworth offence and about his movements on the 19th September and submitted that clearly at that time police officers suspected Vincent Hickey of the Yew Tree Farm offences. He said Vincent Hickey was the registered owner of a blue Ford Cortina estate. In that context he referred to the taking of a statement from Linda Galvin by Mr Fowlie on the 4th December 1978 in which she was questioned closely about the Carl Bridgewater murder, about Vincent’s reaction to news of the murder on television, and his movements on Tuesday 19th September 1978. She was also asked whether he had brought any jewellery or antiques to her house. He submitted that all interviews were either recorded contemporaneously or in notebooks which showed that Vincent Hickey was a suspect and not a potential witness.
The attack being made here is, presumably, in relation to Rule II of the Judges’ Rules. Rule II states:
“As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence he shall caution that person or cause him to be cautioned before putting to him any questions or further questions, relating to that offence. ……”
We do not accept for a moment that on the 4th December the officers had reasonable grounds for suspecting that Vincent had committed an offence at Yew Tree Farm and we conclude that the answers given in these interviews were voluntary, there was no breach of Principle (d) or Rule II of the Judges’ Rules, nor any defective caution. The failure to record the time of the end of the second interview was a breach but had no material effect.
Counsel submitted that so far as the Chapel Farm offences were concerned Vincent Hickey should have been charged by the time of the interview between 10.55 pm and 12.45 am on that night, an interview in which DCI Knight was saying that “we have strong evidence to connect you with the robbery…. we can show that you knew about Chapel Farm, that you were in possession of the Vauxhall car that was used in the robbery. That’s sufficient evidence to put you before the court.”
We do not consider that there was any breach of Section 38(4) of the Magistrates’ Courts Act 1952 in failing to charge Vincent Hickey with the Chapel Farm offences on the night of the 4th December and in leaving it until the 5th December for him to be charged and brought before the court. The conversation late on the 4th December was effectively instigated by Vincent Hickey and he was properly reminded of his recent full caution at the beginning of the interview. In that interview he was clearly aware of his rights and of the fact that what he said might be used in evidence. He was, in fact, for the first time, in relation to both the Chapel Farm and Yew Tree Farm offences, quite deliberately beginning to volunteer information in order to seek advantage for himself.
It follows that we do not consider, as Mr Jones has argued, that there was any illegality which tainted all subsequent interviews.
We consider that there may be merit in counsel’s submission that the terms of section 38(4) of the Magistrates’ Courts Act 1952 may have been breached in leaving it until the afternoon of the 5th December before taking Vincent Hickey before the Magistrates, rather that doing so in the morning. However, since the point was not taken until this appeal, we are unable to discover and decide whether it would have been practicable for a Magistrates Court to be constituted in the morning before whom he could be taken and, thus, whether the time of 2.20 pm was, or was not, “as soon as practicable” within the terms of the section.
The point is rendered academic, in any event, because, even assuming that there was a breach, the only material which might have been ruled out of the evidence was the short interview at 10.50 am on the 5th December in which no admissions was made.
As to the interviews on the 5th December Counsel submits that they were increasingly tainted by illegality as time passed and that to have interviewed the appellant repeatedly as a suspect and at such length was unlawful. He draws our attention to Section 105(5) of the Magistrates’ Courts Act 1952, which reads:
“a Magistrates’ Court having power to remand a person to custody may, if the remand is for more than 3 clear days, commit him to the custody of a constable.”
He submits that, while the two remands of Hickey on the 5th December and 8th December were apparently made under Section 105(5), there was no such power to remand since the power conferred by the section was of an administrative character, to be used, for example, in the case of a suspect who had turned “Queen’s evidence” and was providing information about other crimes or alternatively a suspect whose safety could be threatened by a prison remand or, further, in the case of a defendant who is about to be put on an identification parade.
He submitted that Parliament could not have intended in 1952 by this sub-section to permit an investigating police officer to interview a suspect or accused over the “three clear days” provided by the sub section with a view to obtaining evidence against him and others for criminal proceedings. He draws attention to the absence both of any footnotes to the sub-section in Stones’ Justices’ Manual in use at the time of the trial, and of any reference to the sub-section in the Report of the Royal Commission on Criminal Procedure Chaired by Lord Phillips in January 1981.
He also draws attention to Section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 (which was originally enacted in 1976) which required that the permission of the Secretary of State be obtained for detention between 2 and 7 days in respect of specified serious offences. He accepts that the Police and Criminal Evidence Act 1984 permits decisions to be made by a Magistrates Court for detention in custody for no more that 96 hours in right of arrest, but points out that that is only after two full hearings before a Magistrates Court and an earlier decision by a Superintendent.
He also refers to the wording of Section 128 of the Magistrates’ Courts Act 1980 which amends the provision formerly contained in Section 105(5). The Section reads:
“7) A magistrates’ court having power to remand a person in custody may, if the remand is for a period not exceeding 3 clear days, commit him to detention at a police station.
(8) Where a person is committed to detention at a police station under subsection (7) above –
(a) he shall not be kept in such detention unless there is a need for him to be so detained for the purposes of enquiries into other offences.”
We conclude that the words “other offences” in Section 128(8) of the 1980 Act clearly mean “offences other than those under which the power to remand arose”. We are comforted in that conclusion by the decision in R v Bailey and Smith (1993) 97 Cr App R 365 where it was held that the words “other offences” were not to be given a restricted meaning but included offences related to those with which the accused had already been charged. The court held that it would be “quite artificial” to construe the words restrictively.
Counsel submits that if Vincent had been charged on that night there would have been no more questions and he would have had to go before the court the next morning. We have already dealt with that submission.
He makes minor complaint of the failure to record matters in an interview under caution at 8 pm on the 5th December when Vincent Hickey agreed to point out the accommodation of his cousin Michael and of James Robinson and afterwards did so. We are satisfied that this short interview was adequately recorded, and there was no material breach here.
He next turns to the first interview with the Yew Tree Farm police, the officers being DCS Stewart, DSupt Lycett and DCI Watson, which occurred on the 6th December between 4 and 4.15 pm. In that interview the appellant implicated two of the other three appellants but not himself. Counsel’s complaint is that the interview was not under caution whereas that of the previous day had been.
He makes the same complaint of the lack of a caution in relation to the interview on the 7th December between 1.20 and 5 pm with DI Fowlie, DS Rogerson and DC Crotty in which Vincent Hickey again implicated James Robinson and Patrick Molloy but made no admissions about himself and repeatedly declined to make a statement. Apart from the lack of caution, Counsel also submits that only a part of the conversation was recorded and that after nearly three days detention the interview was too long. He submits that the absence of a caution would have encouraged Vincent Hickey to believe that the police might want to take a statement from him and thus that he was being treated as a potential witness or supplier of information.
Counsel’s main target, however, is what he described as the “crucial interview” held on the 8th December 1978 between 12.40 and 3.20 pm. This took place after the second magistrates’ court remand and involved a telephone call at 2.05 pm in which Vincent Hickey spoke to DCI Knight. Counsel argues that the content and tone of the interview as a whole demonstrates that the appellant’s responses were not voluntary. He points to numerous generalised tactical suggestions throughout, such as that the police were interested, above all, in the “man who pulled the trigger”.
There was no caution at the beginning of that interview which was conducted by DS Lessemun and DC Millington. Early on in the interview, Hickey offered co-operation in helping the police to find Michael Hickey, if he were given bail. The police pointed out that Hickey’s offer to “sort it out” if he were given bail could be followed by Hickey saying that he had only made a statement in order to get bail.
Hickey then asked the question, “What if I was the driver? What would happen to him? Not that I am the driver” and Lessemun gave the answer, “Well, the person we’re interested in is the man who pulled the trigger…. Well, as we said we are mainly interested in one thing, that’s the man who committed the murder”.
At this, Hickey said, “I suppose they are all in the shit?” and Lessemun replied, “Not necessarily. I feel confident that when they set out that day they did not intend to kill the boy”.
Hickey then said, “What do you mean?” and Lessemun answered by saying, “Only one man carried the gun, only one man shot the kid. The others, although committing burglary, they are not necessarily guilty of murder”. At that, Hickey said, “I know something about this job but I don’t know what to say”.
A little later the interview proceeded:
Millington: “Vince, if you know something about this crime you should tell us.”
Hickey: “If I did, I want no charges. You can’t do that can you?”
Millington: “We can’t, but I’m not saying that’s beyond the bounds of possibility. How can we say without knowing what you could tell us?”
Hickey: “I want out of both the Romsley blagging and the murder.”
Millington: “Were you involved in the murder?”
Hickey: “No.”
Millington: “How can you want out when we don’t know your involvement, were you the driver?”
Hickey: “Not the driver, I wasn’t on the job.”
Millington: “Well if you were in a position to help I could contact Mr Stewart, the Chief Superintendent in charge of this case, and he would decide what course of action could be taken.”
Hickey: “Well I know who it was who did the actual shooting.”
Millington: “How?”
Hickey: “I can’t tell you that yet, not until I know nothing’s going to happen to me.”
Millington: “Well, tell us something that would indicate that and we will get in touch with the gaffer and you can tell him.”
Hickey: “There wasn’t one car but two on the job”
A few pages further into the interview Sergeant Lessemun said to Hickey, “…..but you’re getting yourself into a position where you obviously can tell us something and it’s my advice to say just what that is”. A few answers later Hickey said, “Look I can tell you enough for you to know that I can help. Can you help me?” Lessemun answered “We can’t make any promises, tell us about it?”, to which Hickey replied, “I want no charges. Can I speak to Mr Knight?”
A telephone call was then made to DCI Knight at Bromsgrove. In that telephone call Hickey said that he knew something about the Bridgewater murder but before he was prepared to speak about it he wanted an assurance that the proceedings in relation to the Chapel Farm robbery would be dropped. Mr Knight asked if the information was genuine and Hickey said it was. Mr Knight then told him that he could not give him a firm answer one way or the other but, as the murder was more serious than the robbery, Mr Knight would be prepared to submit a report to the Director of Public Prosecutions asking his advice on what should be done. Mr Knight warned Hickey that if he was in any way involved in the Bridgewater murder he would be prosecuted for that offence in addition to the robbery.
Hickey then reported to the two officers what Mr Knight had said on the telephone, saying “He said he would do a report to somebody if I helped but that he wouldn’t if I was involved. I want immunity”
The conversation went on:
Lessemun: “I can’t promise immunity from prosecution, only the DPP can do that.”
Hickey:”Who’s the DPP?”
Lessemun: “Director of Public Prosecutions. You have been charged and put before a court. So its up to him but he will listen to what Mr Stewart has to say.”
Hickey: “I shall want it in writing.”
Lessemun: “Well if you were given it that would be the form it would take but I’m not ringing anybody until you’ve convinced us you’ve got something.”
Hickey: “Alright the kid was not shot outside, it was in the house. He didn’t surprise them, they were waiting for him.”
Millington: “You must have had conversation with the murderer to know that.”
Hickey: “I have.”
Millington: “It was in the papers you could have read about it.”
Hickey: “It said in the papers he was shot in the driveway, not in the house.”
Millington: “Well whereabouts in the house then?”
Hickey: “I’m not telling you anything because I know what you will do.”
Millington: “How do you mean?”
Hickey: “If I tell you, you will find out for yourself and then charge me.”
Millington: “How can we charge you without any evidence? We are asking you to help us. You say you weren’t on the job but now you are talking about us charging you. Why is that Vince?”
Hickey: “‘Cos it was my job wasn’t it?”
Millington: “What do you mean, it was your job?”
Hickey: “I set it up didn’t I?”
Millington: “If that’s the case you do know all about it. I think I’d better warn you we shall record this interview and you are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.”
Hickey, “In that case I am saying no more until I’ve got something from the top. You had better get him.” (meaning Mr Stewart)
Thus at that stage of the interview, once Hickey had made the admission that he set up the Yew Tree Farm offences, he was cautioned and thereafter the conversation continued. The officers told him they would not ring Mr Stewart until they had something more concrete and Hickey told them that the intruders were not looking for antiques but for sovereigns and spade guineas. He also told them that the there were two vehicles involved, a Ford Cortina and a blue van. Mr Lessemun said, at one stage, “even if you admitted everything we would still have to check your story. Your evidence would have to be corroborated.” At another stage Hickey said “Give me immunity and I’ll give you the one you want” Millington said, “It aint the driver we want so much as the one who killed that boy”
A little later Hickey volunteered that, “The farmhouse has no hallway, you go through the back door and the living room’s on the right”. When Lessemun said, “How on earth did you know that?”, Hickey replied, “I know a lot more than that, give me what I want and I’ll give you what you want”. Lessemun said, “It’s not my decision. I’ll certainly put it to Mr Stewart though. I know he has already stated he wants the one who pulled the trigger.” Hickey then said, “Well I’ll give it him providing I’m out and I mean both Yew Tree Farm and the murder.”
When the police asked Hickey to give them the name of the driver, Hickey replied, “Get me immunity and you can have it all”. Hickey continued to deny being at Yew Tree Farm but said he knew who had been. Later, when the questioning in relation to Chapel Farm produced the answer from Hickey that his vehicle “floated around”, DC Millington said….. “That’s exactly what they did on the murder, floated, wasn’t it Vince?”
The conversation went on:
Hickey, “I don’t know.”
Millington: “I think you do.”
Hickey: “I’ve got a headache.”
Millington: “I’d have a headache if I lived with what you know.”
Hickey: “Can I have a doctor?”
Millington: “Yes, I’ll get you a doctor.”
Hickey: “I’m cracking up. I didn’t shoot him.” (At this time Hickey started to hold his head in both hands).
Millington: “I haven’t suggested you had but you were there, Vince, weren’t you?”
Hickey: “Can I have a drink of water.”
Millington: “Yes.”
Hickey: “I can’t stand any more.”
Millington: “Can’t stand what?”
Hickey: “You know.”
Millington: “We all know, all three of us, don’t we. Come on, have your water….”
Lessemun: “You were on that job, Vince, weren’t you.”
Hickey: “Hmm.” (Hickey nodded his head)
Lessemun: “Were you the driver?”
Hickey: “Yes.”
Lessemun: “I thought you were.”
Hickey: “Give me a gun and I will shoot myself. I didn’t kill that kid. Leave me alone. I can’t take any more. Get me a doctor, I’m going out of my mind.”
Lessemun: “You know why Vince.”
Hickey: “Yeah.”
Lessemun: “How could you live with it.”
Hickey: “I don’t know I’ve been trying to tell them without getting me into trouble.”
Lessemun: “Did you shoot Carl Bridgewater?”
Hickey: “No.”
Lessemun: “But you were on the job?”
Hickey: “Yes.”
Lessemun: “OK I will ring Mr Stewart.”
Hickey: “Leave me to think will you?”
Lessemun: “Yes, fair enough, we’ll let you sort yourself out while Mr Stewart comes across.” (Hickey was at this time shaking and reeling).
Hickey: “Do you think he will let me have immunity? Be honest.”
Lessemun: “That’s his decision Vince, but I know this. If I didn’t shoot that lad and I was there I’d tell the truth. Do you still want a doctor?”
Hickey: “No, I’ll be alright, just leave me to sort it out in my own mind. Just give me time.”
Lessemun: “Fair enough.”
The interview ended there and DCS Stewart and DCI Watson were fetched.
We have quoted and will continue to quote from those interviews at some length in this judgment in an attempt to give an overall picture of the nature of the questioning as a context for the setting out of the complaints Counsel for Vincent Hickey makes in relation to the questioning. In addition to the complaint of what is submitted to be an unlawful use of Section 105(5) of the Magistrates’ Courts Act 1952, on which we have already given our ruling, Counsel makes six other complaints: specific inducements, the late and ineffectual caution, the questioning being oppressively long, the appellant being in custody for nearly four days, the breakdown showing that the questioning was oppressive and that only part of the conversation was recorded.
The next interview started at 5.45 pm on the same day, the 8th December 1978. Hickey was said by Watson to be sobbing and in a depressed state. Hickey said, indicating the back of his head “I’m in a terrible state, I’ve got a lump here. I just don’t know what to do, I can’t sort my mind out”.
The conversation then went on:
Stewart: “Have you something to tell me? you know what I’m enquiring into and you know the rules about whether you need to say anything or not?”
Hickey: “I’ve been charged with the robbery which I haven’t done because I told them the truth. I can tell you what you need to know to clear the murder, but the same thing will happen.”
Stewart: “What are you saying, Vincent?”
Hickey: “I’m not saying but if I did say you would charge me I could give you the evidence you need.”
Stewart: “Why have you mentioned it at all if you don’t want to tell me.”
Hickey: “Because I don’t know what to do, don’t you understand. I know what will happen, I’ll tell you and you will have what you need and me. I know that.”
Stewart: “I don’t really follow you. If you have something to say you ought to say it.”
Hickey: “Yea, if I do what can you offer me?”
Stewart: “You want a promise from me?”
Hickey: “Not really, you couldn’t keep it. You would charge me like they’ve done at Bromsgrove I know that.”
Stewart: “Well until you tell me I can’t answer that but I assure you I’m making no promises of any kind. That would be entirely wrong. In any event how do I know what I will do until I’ve heard what you’ve got to say?”
Hickey: “I can give you the evidence you need.”
Stewart: “Well do it then. It’s stupid to mention it and then go on like this. You are asking for a promise or something like immunity I imagine and I tell you this is not on. That’s not to say what you think will happen but as I say we are wasting time if you don’t tell us.”
At later stages in this interview Hickey continued to say such things as “I can give you evidence enough, but I want immunity. Otherwise why should I say anything?. You won’t prove it otherwise” Equally Stewart maintained his position by saying such things as “Well if you are talking about immunity, which I think you are, I can tell you that no way will you get a promise from me. I have no power to do that”
After Mr Stewart left the room Mr Watson said “we will be leaving shortly, you must have made a decision to talk or he wouldn’t have come to see you. ” Hickey said “Yea, well, I’ve changed my mind I’ve nothing to say. So that’s it, I’ll wait and see.”
The conversation between Hickey and Watson concluded as follows:
Watson “You didn’t really think Mr Stewart would say anything about what would happen to you if you told us what you say you can, he can’t do that.”
Hickey: “I know that, he can recommend it though, can’t he?”
Watson: “Well you ought to put your cards on the table, I think.”
Hickey: “I’m alright now I’ll say nothing more.”
Counsel makes five complaints in relation to that interview, that there was a defective caution, that it was wrong and oppressive to hold the interview so soon after the last, that the breakdown shows the questioning was oppressive, that the appellant had spent four days in custody and that only a very small part of the conversation was recorded.
There was a further interview on the night of the 8th December which began at 8.50 pm with DS Lessemun and DC Millington. Hickey was first asked how the interview had gone with Mr Stewart and said Mr Stewart would not promise immunity. The interview then proceeded:
Lessemun: “He can’t, I told you.”
Hickey: “He’s going to have to before I open up, I’ve made sure I’ve told you enough to get you interested but not too much for you to come back at me.”
Millington: “We are interested you can be sure of that Vince.”
Hickey: “I aint saying any more. I made that mistake at Bromsgrove and they shit on me.”
Millington: “How do you mean?”
Hickey: “I told them everything and they turned on me and I finished up charged….”
Later in the interview Detective Sergeant Lessemun told Hickey that he wished he would tell the truth about this matter and that his credibility was very important. He added that “…if you want to put the murder in, and I’m sure you do, what lies you tell will be important.”
Hickey then said he had not told the police any lies but the police disagreed. Hickey asked for examples and the police talked of Hickey’s change of colour of the Ford Cortina estate car. Hickey’s explanation for that was given in these words:
“I wanted to see just how much you did know.
You’re testing me and I’ll test you.”
The officers accepted that they knew he was nervous and had earlier cracked up but pointed out that “we didn’t keep on to you, did we, after you admitted being the driver on that job did we”, which Hickey accepted. When the officers asked Hickey to put matters in writing he said “Not till I get immunity, then I will” DC Millington said to that “There is no way you will get immunity” to which Hickey replied “That’s it then, forget it”. At a later stage DC Millington said “Vince, get it over with. I can see you are agitated”. DS Lessemun spoke of the earlier interview that afternoon at a time when Hickey was “ready to tell all this afternoon, that’s why I rang Mr Stewart. You had completely disintegrated, hadn’t you?”. Hickey agreed that he had and also agreed that he had asked for time then and the officers had given it to him. Lessemun said “We could have kept on but we thought in your best interests we would leave you to think about it.”
The conversation proceeded:
Hickey: “I was cracking up.”
Lessemun: “When you’ve been living with it all this time I can understand that.”
Hickey: “Yea I know.”
Millington: “Vince we’ve been fair with you, we haven’t tried to con you have we?”
Hickey: “No you haven’t but I’d soon see through it if you had.”
The interview continued and Hickey continued to seek immunity but was told by Sergeant Lessemun that “from what you say, you could be the killer, immunity wouldn’t be conceded until you have completely convinced everyone that you had no part in the murder”. Hickey was then given time to think as to whether or not he would make a statement and there was a break for 25 to 30 minutes. After the break, Hickey agreed to make a statement but not in the cells and was taken upstairs.
Counsel makes the same complaints in relation to this interview as he did in respect of the earlier interview which started at 5.45 pm except that, as to this interview, the complaint is that there was no caution given rather than merely a defective caution.
At 11.50 pm on the 8th December in DCI Knight’s office, Hickey accepted that he had decided to make a statement, then changed his mind and did not make one. After DI Fowlie had asked him if he knew that a gun had been taken to Yew Tree Farm, Hickey said “Yes, I knew it was going to be a robbery. Look, let me go back down, I can’t make a statement”. He asked to be taken back to the cells saying he wanted to think and said that he wanted to sleep on the question.
The next morning Saturday the 9th December at 10.45 am a further interview took place in the interview room at Redditch police station with Millington and Lessemun. Hickey said he wanted to leave it to Tuesday to sort out the Yew Tree Farm matter and that he would tell the officers then. Lessemun said, “Personally I think, if you are going to say, the best time is now. When we came yesterday we had nothing more than suspicion but you said enough to convince me that you were on the job” and he then cautioned Hickey. After the caution Hickey said “You won’t do me, you’ve got no evidence” and Lessemun’s answer was “That’s not for me to decide but what I do know is that from all you’ve said the time has come when the truth should be told”. To that comment Hickey said “Why? Stewart wouldn’t promise me immunity and that’s what I want.”
Thereafter Hickey made further admissions, namely that it was an accident and the gun had gone off accidentally. Hickey was later warned by Millington that it was about time he said everything that would help the police with their enquiry, and Millington added, “You are treading on very dangerous grounds Vince.” Hickey’s answer was to say “I know what I’m doing. I know I’ve got to be careful but I haven’t said anything yet that you will be able to prove against me and you know verbals aren’t any good”.
He later admitted being at Yew Tree Farm and in the house, having got in by walking in because he was too fat to get in through the window. He further admitted that he had gone to the house “only to do the knocking”.
The conversation then proceeded:
Lessemun: “You did the knocking then?”
Hickey: “Yes but only to see if there was anybody in.”
Lessemun: “You expected someone in then?”
Hickey: “They were out.”
Lessemun: “Who were?”
Hickey: “There was no one in.”
Lessemun: “But you expected someone to be?”
Hickey: “I just checked.”
Lessemun: “Why?”
Hickey: “I ain’t saying any more I’ve said more than I intended to now.”
On later occasions he again said he had made up his mind not to say any more and that if he said any more he might be spoiling his chances.
Towards the end of the interview he said “Give me immunity and you will prove your murder. If you cannot, forget it”. To that Mr Lessemun said, “Are you expecting us to give you immunity when you admit setting it up, knocking the door first, and being in the house, and using your car and then saying I can prove it without giving the details. No one would do that, no way”. To that, Hickey said “Well, that’s it then”
Hickey was then asked if Robinson had shot Carl and gave the answer, “If he did, you wouldn’t be able to prove it without me. I’m prepared to come to court and give evidence against him. I can’t be fairer than that.”
A little later when Mr Millington pointed out that Hickey had chosen to go on the robbery at Yew Tree Farm, Hickey replied “Yeah, and Romsley. I reckon I could get a deal on Yew Tree Farm because I know you can’t prove it without me but you can still do me for Romsley”. The interview concluded with Hickey saying to Lessemun and Millington “Just let me think, I’ll make you one promise, when I do make a statement I shall ask for you two”
At lunchtime the following day, the 10th December 1978, a further interview took place at 12.20 pm with Lessemun and Millington in which Hickey indicated that he had made up his mind that he was not making a statement. He said “I’m not making any statement, I’ve decided not to” and later added that his reason was because he was not at Yew Tree Farm. Mr Lessemun said “That’s a turnabout” and Hickey answered by saying “I’ve been messing you about, honestly I wasn’t there”. It was put to him that the way he had been on the afternoon of Friday 8th December when he had been shaking and sobbing was a state that no one could invent. He said, “I did, I was hoping to get off the Romsley job by pretending I could help” He was asked how he accounted for his actions and said he was acting. Mr Lessemun said that if he had been acting he should be with the Royal Shakespeare Company at Stratford and Hickey insisted again he was acting. Mr Lessemun said “No one could do that, we saw the way you were. You were completely gone, on the point of suicide, so much so I told the Station Sergeant to keep a special eye on you”. To that remark Hickey made the comment “Good, wasn’t I?” He gave as his reason for acting that he had had a number of officers over to see him before Lessemun and Millington and had spoken of the conversation with Robinson in the California public house. He said the officers “seemed to place great importance on it, wanting a statement and the like, so I decided to play on it”
The interview ended with Vincent Hickey being asked if he would make a witness statement concerning the conversation in the California public house. Lessemun asked “But you will make a witness statement saying what you know?”, to which Hickey replied “Give me time and I’ll let you know”. The officers then indicated that they would see him in the afternoon and did so at 3.40 pm that day. He was asked if he would make that statement now and said “Yes and for the Romsley job. Tell Knight, see if he will give me bail?” Mr Lessemun indicated he was not there to discuss bail or the Romsley job but just for what Hickey knew about the murder committed at Yew Tree Farm. Hickey said “Go on then”
A statement was started but was broken off and a fresh start was made with a second statement which became exhibit 56 at the trial. At the end of that statement Hickey was asked about his movements on the day of the murder and said that he had already made a statement. The officers asked to have it again but Hickey said “No I can’t remember what I said before”
When Hickey was asked to sign the statement he read the caption and said “I’m not signing it anyway. I’m going to make a statement regarding the Romsley job. If I get bail on Tuesday, I’ll sign it”. He was warned by Mr Lessemun that the police were likely to be objecting to his bail on Tuesday whether or not he signed the statement and he asserted that he was not signing it.
At 9.30 pm on the same day there was a further interview with the same two officers which was not under caution. Hickey made denials of guilt despite being told that one of the co-defendants had made a statement. Many of the admissions he had already made himself were put to him and he said “I see what you mean, I’m in the shit ain’t I?”
He asked to see the statement which had been made by his co-accused and said “When I’ve seen that statement you can take me across to Wombourne and I’ll make one saying I pulled the trigger” He asked “What is going to happen?” and he was told by Lessemun, “I don’t know but you’re at a crossroads and it’s time to decide which way you are going”. At that he asked for a solicitor and the officers agreed to get him one but Hickey added immediately “No, you won’t get him now this time on a Sunday”
Hickey was told the statement had been made by Molloy and having initially failed to believe there was such a statement said “Alright, if you say there is a statement, I believe you but you must have offered him immunity to get it.” Mr Lessemun said that no immunity had been offered and went on “and you claim to have played a minor role in it you must realise that there is no immunity being offered. Mr Stewart told you himself on Friday.” Later on when he was shown the statement Exhibit 54, and allowed to read it and similarities in the account in it to his own admissions were pointed out to him, he said, “…. listen, there is only one reason for anybody making a statement like that, you’ve promised him immunity.”
Later when asked by DI Fowlie if he could tell them where he was on the material day he replied “No, I haven’t a clue” Mr Lessemun said “You were at the farm, you know that”, and Hickey made no reply and gave a wry smile.
There was a further interview with the same three officers at 8.10 am the next day Monday 11th December 1978. The interview was again without caution. DI Fowlie said “You said you were out drinking until 4 am every morning because you couldn’t live with it. That’s not the actions of an innocent man”, to which Hickey replied “No, it isn’t” and then hung his head in his hands.
On 28th December 1978 Sergeant Lessemun and Sergeant Leek saw Hickey in the cells at Bromsgrove and told him that Molloy had been charged with murder that morning and was appearing in court that day and cautioned him. He was asked about what he had said himself about Yew Tree Farm and said “You can’t convict me on that either even though I’ve said things that only someone who had been in the house would know, you can’t use that as evidence because there’s nothing else to back it up.”
On Friday the 12th January 1979 Hickey was arrested by DI Fowlie for the murder of Carl Bridgewater and later charged with that murder.
We have already reviewed the various grounds upon which counsel for Vincent Hickey bases his submissions that Hickey’s confessions were inadmissible.
Counsel for Vincent Hickey took us carefully through the law as to the admissibility of statements beginning with R v Baldry (1852) 5 Cox 523. He then cited R v Thompson [1893] 2 QB 12 and R v Ibrahim (1914) AC 599 to which we have already referred. He then referred us to R v Voisin (1919) 13 Cr App R 89, where the court considered that an answer might be excluded on the grounds specified in Ibrahim: or
“…. if he” (the judge) “thinks that the statement was not a voluntary one in the sense above mentioned or was an unguarded answer made in circumstances that made it unreliable, or unfair, for some reason to be allowed in evidence against the prisoner.”
He also drew our attention to R v Bass (1953) 37 Cr App R 51, in which the court quashed the conviction and did not apply the proviso in a case where a man had been interrogated at a police station for three quarters of an hour but where the judge failed to direct the jury that they must be satisfied that the confession was voluntary.
He cited from R v Smith (1959) 43 Cr App R 121 the words of Lord Parker CJ, who said, at p 126:
“In deciding whether an admission is voluntary, the court has been at pains to hold that even the most gentle, if I may put it that way threats or inducements will taint a confession”
That was the case where a sergeant major addressed a parade on the basis that they would not leave until the culprit confessed. The confession then made was held to be involuntary but another confession several hours later was said to be voluntary.
Counsel cited R v Cleary (1963) 48 Cr App R 116, where the conviction was quashed because the issue of voluntariness had not been left to the jury. The confession had followed words spoken by the suspect’s father in the presence of investigating police which where held to be capable of being an inducement. Those words were: “Put your cards on the table. Tell them the lot. If you did not hit him, they cannot hang you.”
Again in R v Richards (1967) 51 Cr App R 266, the conviction was quashed and the proviso not applied where a judge had not specifically ruled on the voluntariness or otherwise of a confession made after the words “I think it would be better if you made a statement and told me exactly what happened”.
As to oppression, Counsel took us to Prager and Priestley to which we have already referred in this judgment.
Counsel also took us to four cases where the courts considered voluntariness in relation to appellants who had sought advantage before any inducement was held out. He submitted that in all of the cases it was accepted that even where the suspect was seeking advantage by offering information or admissions that an apparent acceptance of the offer by a person in authority would make a consequent admission inadmissible. In R v Northam (1968) 52 Cr App R 97, the officer had accepted that an admission might be an offence taken into consideration and in R v Zaveckas [1970] 1 WLR 516, it was a request for bail. In both these cases the appeals were allowed. In DPP v Ping Lin [1976] AC 574, further information was offered that might influence sentence but as the offer was only made after the admissions had been made the appeal was dismissed. In R v Houghton and Franciosy (1979) 68 Cr App R 197, the appeal was dismissed where the appellant made a request for immunity in return for information but nothing was done to encourage the belief that immunity would be given.
Authority was also cited and argument for Patrick Molloy was adopted in support of the submission that Hickey’s admissions were inadmissible as having been obtained as a result of a trick. Counsel argued that those admissions followed a deception held out to the appellant that the police had little serious interest in convicting those who had merely burgled Yew Tree Farm, as opposed to the man who had pulled the trigger.
The Crown submitted that, even, if any of Hickey’s earlier admissions were inadmissible (a contention with which it does not agree), there can be no question about the admissibility of the later confessions, that is those which commence with the words “I set it up, didn’t I?” which led to his being immediately cautioned in the 8th December 1978 interview between 12.40 and 3.20 pm. That particular admission followed the telephone conversation between DCI Knight and Hickey when Mr Knight had made it clear that if Hickey was in any way involved in the Bridgewater murder he would be prosecuted for that offence as well as the robbery.
The Crown submitted that the course of the interviewing, so far as incriminating answers were concerned, fell into four stages, of which the first commenced at the beginning of the 8th December 1978 interview at 12.40 pm. It submitted that early on in the interview Hickey was playing “cat and mouse” with the police and was seeking to persuade them that he was the only one who could give them the information which they needed to identify the murderer. It was Hickey who was providing the inducements and not the police, by his adopting a tactic of dangling a few pieces of information in front of the police, such as the fact that he knew who it was who had done the shooting, that there were two cars on the job, that there was a blue van which had been left in Redditch, and a Cortina estate which had been broken up, and that he “knew about the job, I was very nearly on it myself… I was in the car that morning, then I changed my mind”.
These remarks were designed to attract the officers’ interest by showing them that he was in a position to identify the murderer, but they did not involve any admission of actual involvement in the Yew Tree Farm offences. Hickey made it clear that he was hoping by identifying the murderer, to get immunity from both the Chapel Farm and Yew Tree Farm offences. He said expressly, “I want out of both the Romsley blagging and the murder”. The Crown accepts that at that stage he had not been cautioned and says that was because he was being interviewed, not as a suspect, but as someone professing to be able to provide information about a crime committed by others. In any event he clearly knew that he did not have to speak to the officers and that what he said might be used in evidence against him. He was an experienced criminal, had been cautioned several times in earlier interviews, and his own answers in the interviews showed that he was well aware of the danger of saying things which could result in his own prosecution.
The second stage in the interviews involved the phone call with Mr Knight when he was told that Knight would be prepared to report to the DPP for advice any useful information Hickey gave about the murder but was warned at the same time that if he was any way involved in the Bridgewater murder he would be prosecuted both for that and the Chapel Farm robbery. With that knowledge he continued to play “cat and mouse” and to dangle information in front of the officers. He now knew that any question of immunity would be in writing, if it ever occurred, but chose to profess to having set up the operation but not having been there when it was carried out. As a result he was able to choose to give information about what had happened but to distance himself from the murder.
The information which he gave included the fact that Carl was shot accidentally, and in the house, that the offenders were looking for sovereigns and spade guineas, that the farmhouse had no hall way and that he had rung the police at Bournville some weeks back. He also said that he had seen the murder gun and professed to describe it. Most of those pieces of information were given after he had been cautioned once he had admitted to setting up the operation, although he was still denying any actual presence. The Crown submitted that the Judges’ Rules were not intended for the benefit of criminals who chose to play “cat and mouse” with the investigator in this way, and that Hickey knew exactly what he was doing in feeding them information. It was he who was seeking to induce the police to give him immunity, despite what he had already been told.
The third stage of the interviewing began at the end of this part of the interview when his attitude and demeanour suffered a marked change, in that he said he had a headache and asked for a doctor and said he was cracking up. He denied shooting Carl Bridgewater and asked for water which he was given. He became very distressed, shaking and reeling, and asked for a gun to shoot himself. Later he was to allege that all this was play acting. The Crown submitted that this confession, his first to presence as one of the gang at the scene, clearly had nothing to do with any inducement offered to him but was due to genuine distress and fear for his own position from which he was suffering.
The fourth stage of the interviews, according to the Crown, started with the fetching of DCS Stewart when Hickey was still sobbing and holding his head in his hands. Hickey said he would not say any more to Stewart because he knew what would happen: “I’ll tell you and you will have what you need and me”. Stewart said, “No way will you get a promise from me – I have no power to do that” and Hickey accepted that was the truth and that if Stewart had said anything different he would be lying. The Crown submitted that Hickey was left in no doubt that it was up to him to decide what to do and that if, which was not admitted, there had been any question of inducement before this, there was certainly none thereafter.
The Crown submitted that this was an important milestone after which came Hickey’s real admissions of involvement at Yew Tree Farm in interviews the following day. That night he had again been warned (by Lessemun and Millington this time) that there could be no promise of immunity. The following day he told the same two officers, after caution, and in circumstances where there could be no question of any inducement operating on his mind, that he had been in the house and had walked in because he was too fat to get through the window and he had gone to do the knocking to see if there was anyone in: “They were out”. The Crown reiterated that there could be no question about the admissibility of these last answers.
Having listened to all the arguments we have to decide whether the admissions Vincent Hickey undoubtedly made to participation in the offences at Yew Tree Farm might have been excluded from the jury’s consideration in 1979 by a judge if any such application had been made to him. Ours is a decision which has to be made in vacuo because no such applications were made to the judge as we have already indicated.
We are satisfied, as was indeed conceded by his Counsel, that Vincent Hickey was himself engaged in an activity where his prime purpose was to seek for himself some sort of immunity from prosecution for both the Chapel Farm offences and the Yew Tree Farm offences. He was adopting the tactic he had already used successfully in relation to the Rickmansworth offences of providing information against fellow suspects in order to achieve a better position for himself. He was an experienced criminal, well familiar with police interrogation and with the fact that what he said to the police could be used to prosecute him. He was manipulative in the extreme and had no concern for anyone other than himself. To that end he was content to say anything about anyone else, whether true or not, if it might assist his own purposes. He was the initiator of conversations designed by him to provide inducements to the police which he believed at an early stage might enable him to achieve some sort of immunity from prosecution. Thus he embarked on a carefully conceived plan to provide only such information as would help his purpose whilst avoiding implicating himself. In fact, as time went on, he failed in that purpose because he did begin to implicate himself. At all times when he was giving answers he was aware that if he implicated himself he could be prosecuted on the basis of the words he was uttering. Despite that knowledge of what was a worrying factor to him, he nonetheless decided to continue along his chosen course of providing information in order to try to achieve his intended goal.
Examples abound in the interviews of Hickey revealing his true state of mind. A few will suffice. On the subject of Mr Stewart offering him immunity, he said:
“He is going to have to before I open up. I’ve made sure I’ve told you enough to get you interested but not too much for you to come back at me.”
When told that he was treading on very dangerous grounds, he answered, “I know what I am doing. I know I’ve got to be careful but I haven’t said anything yet that you will be able to prove against me and you know verbals aren’t any good” A little later he said “I ain’t saying anything more. I’ve said more than I intended to now.”
We are satisfied that, had any objection been taken to the admissibility of these confessions, a judge in 1979 would have ruled that they were admissible. We have come to that conclusion, having well in mind the occasions when Hickey was told that the police were interested or were mainly interested in the man who pulled the trigger. Such would have been in Hickey’s mind in any event but would have been reinforced by Lessemun’s telling him:
“Only one man carried the gun, only one man shot the kid. The others although committing burglary, they are not necessarily guilty of murder.”
We are satisfied that there was no question of any trick being played upon Hickey at any stage in his interviews.
We have come to our conclusion on the basis that, whether or not a caution was in fact given, or whether it was given in its full form or an abbreviated form, Hickey was well aware of his position and its potential consequences and the fact that he did not need to say anything but whatever he said might be used in evidence against him.
We have also considered the occasions when officers made remarks such as “If you have something to say, you ought to say it” and “Well, you ought to put your cards on the table, I think” or otherwise indicated that the time had come that the truth should be told or that “if you are going to say, the best time is now”. Given the circumstances and Hickey’s tactics to which we have referred, such remarks as these, in our view, do not derogate from the voluntariness of the statements made by Hickey.
Equally, we consider that neither the length of the interviews nor their number were in any way oppressive. This was an inquiry into an extremely serious offence which clearly involved the need for careful and repeated questioning in order to get to the truth of the matter being investigated. We have already set out in this judgment the timetable for the various interviews and we do not accept Counsel’s criticisms in this regard.
We bear in mind that Vincent Hickey showed signs of distress at one stage, complained of a headache, and made a request, later retracted, for a doctor. Soon after that he admitted having been on the Yew Tree Farm operation. We are unable to accept Counsel’s submission that Vincent Hickey’s confession of presence at Yew Tree Farm was, or may, have been the result of any inducement or oppression. We are satisfied that the Crown is correct in the submission that these symptoms were due to his genuine distress and fear for his own position. In such circumstances it is hardly surprising that someone in the serious position in which Vincent Hickey was, of facing serious allegations in relation to the Chapel Farm robbery and fearing the possibility of being charged with an offence in relation to Yew Tree Farm, should become upset in the way Vincent Hickey did. Indeed, in R v Isequilla [1975] 1 WLR 716, a defendant who had been crying and repeating that he had been stupid and who had continued to cry, was obviously frightened and became more and more hysterical on the journey to a police station, made a confession statement there. It was held that the fact that he was frightened and crying and later became hysterical was not a mental state that rendered the confession statement unreliable or untrustworthy so that it should be excluded.
Our attention has been drawn to the fact that at p 49H of the summing up the judge said:
“Do not be confused or misled on this matter by what you have heard about the police officers from an early date told (sic) the accused that they were very interested in discovering the identity of the particular man who pulled the trigger. It was obviously a matter of interest to the police to discover who fired the gun. Also there may well have been very good tactical reasons when questioning those suspected of having been present at the farm to say to them and in statements released to the press and broadcasting people, that the police were concerned above all to find who pulled the trigger, or were only interested in finding the identity of the man who pulled the trigger. Such emphasis might lead others who were present at the farm to think that they might be dealt with more lightly and so to give information.”
Those were remarks of eminent common sense. We cannot think that the judge would have so highlighted the position, had he felt in any way that such remarks in the circumstances of these interviews might be capable of rendering any admission by Vincent Hickey inadmissible.
It follows from all this that this court is of the view that no valid objection to the admissibility of these interviews on the grounds of involuntariness could have been made at the trial. Had such submissions been made in 1979 they would have been bound to fail. That is no doubt the reason why such submissions were not made. It follows that Ground 3 of Vincent Hickey’s grounds of appeal must be rejected.
Ground 4
Judge’s Misdirections as to the Appellant’s Admissions
Counsel for Vincent Hickey submitted that the learned judge misdirected the jury by telling them that the interviews had been proper and voluntary. The learned judge said at p 68A:
“None of the accused has suggested for one moment that the questioning by the police officers was not fair. There are stringent rules which govern the interviewing of suspected persons by police officers. In some criminal cases defendants allege, and sometimes no doubt quite rightly, that those rules have been broken so that their answers given in interviews are not given freely and voluntarily. No such suggestion is made by or on behalf of any of the accused in this case.
So you need not be concerned by the fact that there was a lot of questioning by police officers who were carrying out their duty and the prosecution are fully entitled to rely on what was said during those interviews and to invite you to draw conclusions from that evidence.”
He also spoke of the police questioning, when considering what allowance the jury should make for the defendants undergoing an ordeal “when being questioned, although quite properly over a longish period of time by different police officers.”
Counsel submitted that the judge ought not to have relied on the refusal of the appellants’ counsel to criticise the police (which he said was, presumably, for what were thought to be good tactical reasons) in order to direct the jury that the police had behaved properly and were bound in law to behave as they had. Counsel submitted that “the illegalities were manifest and striking”, and argued that, while it would have been acceptable for the judge to say that there were no challenges to what had been given by the police in evidence, it was unfortunate that the judge had drawn the jury’s attention to the stringent rules which controlled police behaviour.
This submission highlights the point that the factors then being dealt with by the judge were very different from those we have had to deal with in this appeal. No questions were raised and no criticism was made in the trial itself in relation to the manner of the questioning by the police in investigating the Yew Tree Farm murder. Equally, none was raised in argument at the first appeal. It is only necessary to look at passages in this judgment to see how vastly different the position is in relation to the appeal we have been hearing.
It was only during Counsel’s argument in this appeal that it was for the first time suggested that there had been a serious error by those representing Vincent Hickey at the trial and, by implication, at the first appeal. Rhetorical questions were asked as to why at the trial there had been no argument that Vincent Hickey’s statements be excluded or edited, or why there had been no application to exclude them simply on the committal papers themselves. We consider that this is an argument only thrown up by the potentially dangerous light of hindsight.
We repeat that no valid criticism can be made of what the judge said to the jury in the passages of which Counsel complains at p 68A that we have already set out. Each of the four sentences set out in the first paragraph was factually accurate. The first and last sentences fairly summarised the position which had occurred in the trial, the second and third sentences summarised the position as to what controlled police interviewing and how, in some cases, juries had to consider alleged breaches of the rules. The last sentence in that paragraph made it clear that such was not the situation in this case, and the next paragraph told them accurately what they need not be concerned with and what, in contrast, they did have to consider.
No point had been taken in the whole of the trial to suggest that any statement by any defendant was otherwise than voluntary. In our view the judge was perfectly entitled to say what he did at p 68A in the circumstances of the case then presented and we reject the criticisms now put forward with the benefit of hindsight.
We also consider that it is hindsight that has indeed caused Mr Alun Jones, QC, counsel for Vincent Hickey to make the somewhat surprising further submission that the Chapel Farm and the Yew Tree Farm offences should, by reason of their nature, have been tried together in the interests of his client. In this submission Counsel stood alone: no other counsel at the trial or in this appeal has taken that view. We say, at once, that we are not surprised. We cannot think for a moment that a joint trial of the Chapel Farm and Yew Tree Farm offences would have assisted Vincent Hickey and the co-appellants in their defence in any way at all.
All defence counsel at the trial made submissions to the judge arguing for severance of the two sets of offences. We would have found it amazing had they not done so. Equally we are of the view that the prosecution arguments in favour of joinder were formidable ones. One has only to look at the draft opening note of the prosecution to see how strong a case was made out for joinder. Prosecuting Counsel submitted seven points of similarity between the Yew Tree Farm and Chapel Farm offences which we consider to be formidable:
(i) Each farm was within half an hour’s drive of a particular area of Birmingham and also within a short distance of fast and busy roads leading to the city to permit a rapid, unobserved escape.
(ii) Each farm was in a completely isolated situation with the nearest dwelling 200 to 300 yards away.
(iii) There were unlikely to be callers because of the presence of disused overgrown farmyards and buildings close to each house.
(iv) Each house was a substantial, old-fashioned building occupied only by elderly, arthritic people in their seventies or eighties who were usually at home and were incapable of offering much resistance to an armed attack.
(v) In each case the occupants had spent their lives until retirement in active farming of the land around the houses and therefore were likely to be people of substance with money, jewellery, valuables or antiques likely to be kept in the house.
(vi) In each case the attackers were armed with a shotgun and the attack was about 4 pm in the afternoon.
(vii) In each case there was clear evidence that a group of men were involved in the attack.
There were a further three similarities, bringing the total to ten, which were pointed out in the Crown’s Skeleton argument in this appeal:
(viii) Each offence had been set up and the “target” had been identified by Vincent Hickey.
(ix) In each case Vincent Hickey gave no advance warning to his accomplices but instead drove with Michael from the Dog and Partridge after lunch to meet Robinson at or near the California public house, where he proposed the job to Robinson and picked him up: “the modus operandi” in each case was identical.
(x) In each case Vincent Hickey was the driver of the vehicle which was available for his use and which he parked a short distance away from the farmhouse.
We are completely satisfied that the position of the defendants in relation to Yew Tree Farm was greatly improved by the judge’s ruling, because it kept from the jury’s minds any of these matters which a joint trial of the Yew Tree Farm and the Chapel Farm offences, or the admission of evidence relating to Chapel Farm in the Yew Tree Farm trial, would have involved.
The difficulty resulting from the judges ruling so far as the defence of Vincent Hickey was concerned, was that, because the jury knew nothing of the Chapel Farm robbery (as opposed to the deception, of which they had some scant details), Vincent Hickey could not use his desire to gain immunity in relation to that robbery as the reason for involving himself in revelations about Yew Tree Farm. It has to be noted that at the time of the trial Vincent was still denying being involved in the robbery at Chapel Farm. However the jury did know about the Chapel Farm deception and did know from Vincent Hickey’s evidence on the 24th October 1979 that he had pleaded guilty to a count of obtaining by deception the sum of £350. Early on in Vincent Hickey’s examination in chief, Vincent Hickey himself offered as a motive for his conduct in interview the potential dropping of the deception charge: transcript for 25 October 1979, p2G:
“A. Mr Knight said that it was not up to him to say no charges, but he could put a report in to the Director of Public Prosecutions that I have helped on the murder enquiry.
Q. It was all on this subject of no charges, was it ..?
A. Concerning the deception, yes.”
A little later he expressed concern that the giving of information about the murder would result in his being charged with it, though he was maintaining his innocence of it: ibid p3F:
“Q. And then apparently you were saying, “I am not telling you anything because I know what you will do if I tell you. You will find out for yourself and then charge me”?
A. I could have said something like that, yes.”
The matter was covered extensively in cross-examination and in re-examination when Vincent Hickey reiterated that he did not mention the word “immunity” but just wanted bail: transcript 28 October 1979, p62E:
“A. I wanted out of the Chapel Farm deception.
Q. What sort of advantage were you thinking of getting? I mean, how serious did you rate the possible consequences? Can I put it this way, what you wanted out of, I mean, was it a serious matter or a trivial matter or what sort of matter was it? How did you assess it?
A. It is a trivial matter really but I have never been to prison before and I didn’t want to go to prison.”
Before that stage there had been argument during cross examination when Hickey’s Counsel had indicated that he could see a possible confusion and a possible unfairness being laid against the witness. The Judge had heard argument in the absence of the jury and had said: transcript for 25 October 1979, p 69H:
“If it be the position that he has another offence that he says he was wanting a deal over, then the remedy is always in the hands of the defence”.
The judge there was only repeating the same point that he had made in his ruling at the beginning of the trial on the question of severance. He had said on Tuesday the 9th October 1979 at p 5:
“It follows that the accused — and each of them — are at liberty, whether by themselves or through their Counsel conducting their cases, at any time to make reference to what happened at Chapel Farm should they decide that it is in their interests or interest so to do. The overriding consideration that each individual accused should not be fettered in the conduct of his own defence means that each individual accused is at liberty to take his course of action irrespective of the fact that doing so, whilst it might further his own interests, it might have a prejudicial effect on one or other of his co-accused.”
The question of what advantage Vincent Hickey was said to be hoping for by talking about the Bridgewater murder was canvassed at the trial by his junior counsel in cross examining DS Dickens. On the 19th October 1979 of the transcript at p 23A the questioning went: p25A:
“Q. I appreciate that but was he given any encouragement to talk about the Bridgewater murder?
A. He was given the opportunity.
Q. You say the word “opportunity”?
A. Yes
Q. Was anything said while he was being given that opportunity to lead him to believe that it might be to his advantage to give information?
A. Certainly not
Q. Let me make it clear I am not suggesting any impropriety of any kind, was anything along those lines said at all?
A. Certainly not, No.”
When Mr Knight, by now a Superintendent, was cross examined by the same junior counsel for Vincent Hickey, it was put to Mr Knight that, by the time Mr Knight was interviewing Hickey on the 8th December 1978, Hickey was concerned whether Mr Knight would be able to assist in seeing that he was not prosecuted. Mr Knight agreed that Hickey was concerned. The cross examination continued: ibid p25G:
“MR JOLLY: What I am suggesting or what I am asking you is this: when you were speaking to him on Friday 8th December starting at 5 past 2, did he appear to hold the belief that you might be able to help him by seeing that he was not prosecuted?
A. Yes, that is why he rang me up.
Q. I want to go back to Tuesday 5th December and ask you whether anything had been said on that occasion to your recollection which might have encouraged him in that belief?
A. No
Q. It is right, is it not, that you were present on Tuesday 5th December at a conversation. In fact you had the conversation with him at 8 o’clock in the evening of that day the 5th, in which he was told of the desire of the police.
A. Yes. That is correct.
Q. To further their enquiries into the Carl Bridgewater murder.
A. Yes that is right, yes.
Q. What I am anxious to learn is whether anything was said at that time that might have encouraged him to think that you could help by saying that he was not prosecuted?
MR JUSTICE DRAKE: For the Bridgewater murder?
MR JOLLY: For the Bridgewater murder.
A. No sir. The situation just had not arisen.
Q. What I am trying to find out is whether anything was said to him on that occasion to encourage him to talk?
A. Not in respect of the Bridgewater murder, No.
Q. Or anything said that might have lead him to the belief that he might be released if he had information to give about the Bridgewater murder?
MR JUSTICE DRAKE: Released from the interview?
MR JOLLY: Yes. A. It is a bit difficult to follow, released in what respect?
Q. Released from that interview, allowed to leave the police station.
There was no question of him being allowed to leave the police station if you look at my statement, at that stage.”
After a little confusion in cross examination the matter was clarified when the judge asked the question at p 27F:
“At any time has anything been said to Vincent Hickey to suggest that if he was one of those involved directly as a party to the Bridgewater murder, and spoke about it, he would be given immunity from being prosecuted for it?
A. Not from me certainly, no.”
It followed then, that, however inelegantly, counsel for Vincent Hickey had raised in cross examination of a senior police officer as to an interview in December 1978 that Vincent Hickey was concerned that such an officer would be able to assist in seeing that he was not prosecuted for the Bridgewater murder. The point had also been raised by cross-examination that Vincent Hickey might have believed that he might be released if he had information to give about the Bridgewater murder.
Equally, during the prosecution case evidence was led of answers given by Vincent Hickey in interview where he was seeking immunity in relation to the Yew Tree Farm offences, including the murder.
The way was therefore clear for Vincent Hickey, when he came to give evidence, either to introduce, (if he wanted and was advised so to do) the Chapel Farm robbery, or to give as the explanation for his conduct, not only a desire for bail on the Chapel Farm deception, but also a desire for immunity in relation to Yew Tree Farm, even though he was asserting he was not involved in Yew Tree Farm. There were many passages in his interviews when he was saying just that, that he was not at Yew Tree Farm but knew a lot about the offences and would tell the police what he knew, if he was given immunity from prosecution for those Yew Tree Farm offences.
Although the way was open, it was not the route Vincent Hickey chose. He chose to say that he “wanted out of the Chapel Farm deception” although it was “a trivial matter really but I have never been to prison before and I didn’t want to go to prison”
In those circumstances, we conclude that it was not the severance of the Chapel Farm robbery which caused any harm to the defence of Vincent Hickey. He could have chosen to introduce the Chapel Farm robbery into the case or he could have given as a reason for his conduct (additional to wanting bail on the deception charge), the fact that he was seeking immunity from Yew Tree Farm, though he was saying he was innocent of Yew Tree Farm in any event.
The introduction of the Chapel Farm robbery is a course of which Mr Jones, on the basis of his submissions as to the earlier errors involved in the defence seeking severance, presumably, would have approved. For the reasons we have already given, we think such a course would have damaged the defence of Vincent Hickey. However the other alternative was always available. In those circumstances we cannot find that the judges directions on this matter at p 70D in the transcript of the summing-up amount to a misdirection.
The judge said:
“Ultimately I suggest that the most vital question effecting Vincent which you have to consider is whether you think it is possible, against the background of all the evidence you have heard, that Vincent should have made what amounts to a confession of setting up and participating in the burglary at Yew Tree Farm when in fact he had nothing whatsoever to do with it. Do you think it possible that he was confessing to a part in such a crime which he knew had aroused deep feelings in many people and which had received widespread publicity only because he had been led by police officers to believe that such a confession would result in him being granted bail or been” (being) “offered immunity from prosecution or” (for) “some other less serious offence?” (sic).”
In the light of the evidence given by Vincent Hickey, that must have been a question which was at the forefront of the jury’s minds and there was no misdirection in making such a comment. It was a comment which the judge was entitled to make, bearing in mind the evidence Vincent Hickey had chosen to give about the question.
Vincent Hickey’s Ground 7
The last ground set out in Vincent Hickey’s Perfected Grounds of Appeal was that “The failure to disclose material relevant to issues in the case makes the verdicts unsafe”. It was alleged that the prosecution failed to disclose documents which contained material relevant to the issues in the case and which should not have been withheld both under the law as it stood in 1979 and in the light of recent authorities. This ground had about it something of the air of a make weight and, quite realistically, not all of the matters set out in the Skeleton Argument were pursued before the court.
The documents that it was alleged were not disclosed included draft statements of police interviews, witness statements which formed the basis of composite statements, other witness statements, scene visit notes, X-rated statements, telephone messages and action notes, DS Tooth’s notes of interviews with Peter Bryant. Complaint was also made about material disclosed to the defence but not selected for use by the prosecution or the defence, and as to the way in which articles which were stolen from Yew Tree Farm were treated. Finally there was a complaint about the statement of PC Gillespie.
Many of the matters raised under this ground have been dealt with elsewhere in this judgment, for example the failure to disclose to the defence statements of Linda and Stephanie Galvin and of Bernard Turner and the X-rated statements of Ian Goodfellow and Pamela Massey as to the Bristol Road Garage documentation.
Further, action note number 807 which records Mario Sabetta saying that, of the two men he saw walking away from a blue Escort or Cortina, one of the men “had a rifle”, is a matter that has already been dealt with elsewhere. At the trial he described the weapon as “a firearm” and identified exhibit 25 as “about the same”. As we have indicated we do not consider that, had such material been provided, it would have added anything significant to the challenge to Sabetta’s reliability. Again, the reliability or otherwise of the witness Peter Bryant has been dealt with elsewhere.
As to the other matters complained of, we are unable to agree that the failures to disclose made the verdicts unsafe. The fact that the draft statements dealing with interviews with Vincent Hickey did not include any reference to “spade guineas” would not, we think, have made a material difference to the effect of the cross examination of those police witnesses.
Again, we have already mentioned the question of the statements of Detective Sergeant Potts and the absence of a reference to the removal of the watch of the deceased at the post mortem. We do not think that any reference by him to the methods of searching the drawers at Yew Tree Farm or his impression that the forcible entry at the farm house had been “amateur” would have materially assisted the defence.
Counsel also submits that the prosecution had selected only evidence consistent with the leaving of the Dog and Partridge at 3 pm and being away from Yew Tree Farm at the earliest by 5 pm. He submits there were a striking number of blue vehicles seen between 12.25 and 3 pm and later between 5 and 5.25 pm. He submits that the prosecution had selected only evidence consistent with their case, and that there was a failure of the prosecution to give a fair and accurate presentation of various aspects of the case. We are satisfied that the Crown had to draw a line somewhere. We are satisfied the position is rightly stated in Russell Jones where at page 542F it is said by Kennedy LJ:
“The court noted the observations of Lord Hewart CJ in argument in Harris (1928) 20 Cr App R 86 .. where he said at p144:
‘In criminal cases the prosecution is bound to call all the material witnesses before the court, even though they give inconsistent accounts, in order that the whole of the facts may be before the jury.’
But as Lord Parker pointed out, the Privy Council in Adel Muhammed El Dabbah v Attorney General for Palestine [1944] AC 156, 169, expressed the view that Lord Hewart ‘could not have intended to negative the long established rights of the prosecution to exercise his discretion to determine who the material witnesses are’.”
The same situation applies to the complaint made about Fred Jones composite witness statement which formed part of the trial statements and the further information which was contained in his many other witness statements which were served on the defence in the bundle of unedited statements. The further information which was in those statements was available to the defence before and during the trial.
Nor do we think that anything could be said to make the verdicts unsafe in the confusion which undoubtedly took place between Fred Jones dog and the dog of George Jones, the husband of Gladys, nor the confusion as to where Fred Jones’s dog had been left by him, namely in the kitchen, and where DS Potts, according to his evidence, found that dog, in the washroom, in the scullery, nor in the fact that Gladys Jones did not say that she heard the dog bark.
It is said that the contents of Fred Jones’s unedited statements would have provided support for the allegation that the crime might have been committed by someone living in the area of Yew Tree Farm. We are not much impressed by that argument and, in any event, the material was provided to the defence.
Finally, while PC Gillespie’s statement recorded Stephen Birch’s acquiring of his blue Ford Cortina estate on 24th January 1978 whereas Mrs Birch had in evidence put it that “We purchased one about March and they had theirs 3 or 4 months after ours”, we do not think the submission that, had PC Gillespie been called as a witness, Mrs Birch could not have been put forward as a reliable witness is sufficiently made out. We do not think that the failure to call PC Gillespie or indeed Mr Birch is at all significant.
It follows that we are unable to find that the matters set out in Vincent Hickey’s Ground 7 can in any way be successfully argued to make the verdicts unsafe, and we reject Ground 7.
Our Conclusions in Relation to the Appeal of Vincent Hickey
For the reasons we have given elsewhere in this judgment in relation to the leading in evidence of exhibit 54, the confession of Patrick Molloy, at the joint trial of these four appellants and the presence of Molloy in the dock with the other three, together with what flowed therefrom, we are satisfied that the conviction of Vincent Hickey cannot be said to be safe and we shall accordingly set it aside.
We have already indicated that, in relation to the alibi, the appellants are right in their submissions and that this casts further doubt on the safety of the conviction of Vincent Hickey for the reasons submitted by his Counsel. However, it must follow, from our rejection of the other Grounds argued on behalf of Vincent Hickey and, in particular, our dismissal of the argument that his confessions were inadmissible, that we cannot say, as we do in the cases of James Robinson and Michael Hickey, that there remains no sufficient evidence on which a reasonable jury could convict. In the light of Vincent Hickey’s confessions to presence at Yew Tree Farm on the material afternoon we consider that there remains evidence on which a reasonable jury properly directed could convict. We are not saying that a jury would convict; we are merely saying that there is evidence which it would be proper to leave to a jury.
The Appeal of Michael Hickey
THE JUDGE’S DIRECTIONS ON LIES
A complaint that the judge gave inadequate directions to the jury concerning lies is raised in the appeal of Michael Hickey. The prosecution relied on the following matters as being deliberate lies by Michael Hickey which supplemented the case against him:
i. His assertion that his association with James Robinson and Patrick Molloy began after Robinson’s release from custody on the 23rd of October 1978,
ii. His assertion that he had no knowledge of the Wordsley-Kingswinford area of Staffordshire,
iii. His first account of his movements on the 19th of September 1978,
iv. His alibi advanced at trial, and
v. His flat contradictions of the evidence of such witnesses as Michael Lee.
In respect of the third of these matters, it was admitted that Michael Hickey’s initial account of his movements on the 19th September 1978 was untrue. The judge’s directions to the jury with respect to the possible fabrication of the alibis advanced by Michael Hickey to the police and at his trial have already been considered earlier in this judgment.
The submissions made on behalf of Michael Hickey are that the judge’s directions as to lies amounted to misdirections according to the law as it stood in 1979 and he, in any event failed totally to alert the jury to the danger of inferring guilt from lies, which the Courts have now recognised and which this Court is entitled to take into account in determining the safety of these convictions.
The 40th Edition of Archbold which was the edition current at the time of the appellants’ trial treated lies in two places. First, it set out those passages in Turnbull and Keane which we have already cited with regard to false alibis being used to support evidence of identification. Second, Archbold dealt with lies as corroboration of a witness whose evidence required corroboration. The editors dealt with this matter in two parts: first “a false statement made by the defendant to the Police or before the commencement of proceedings is not necessarily corroboration, but may be so. Whether it is or is not capable of affording corroboration must depend on all the circumstances of the particular case”. Second with regard to lies told by an accused when giving evidence, “the proper approach for a jury to take when rejecting a defendant’s evidence is to ask the single question “why has this evidence which we have rejected been tendered to us?”
A major advance in this aspect of the law came in the case of Lucas (1981) 73 Cr App R 159, a case concerning corroboration of an accomplice’s evidence. In that case, this Court presided over by the then Lord Chief Justice held that a lie was capable of amounting to corroboration if four conditions were satisfied. The first that the lie was deliberate. The second that it related to a material issue. The third that the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie for reasons other than guilt. The fourth that the statement must be clearly shown to be a lie by evidence other than that of the accomplice whose evidence is to be corroborated.
Subsequent decisions of this Court extended those requirements to lies generally, for example see Goodway (1994) 98 Cr App R 11. By 1992 the Judicial Studies Board had published a specimen direction covering the Lucas points which was approved by this Court in Richens (1994) 98 Cr App R 43 (decided on 5 November 1992). One of the most recent cases is Burge and Pegg [1996] 1 Cr App R 163. There this Court pointed out that a “Lucas direction” would not be required in every case where the prosecution alleged that a defendant had told lies. Where a “Lucas direction” was necessary,
“it will normally be sufficient if it makes the two basic points: one that the lie must be admitted or proved beyond reasonable doubt; and two, that the mere fact that the defendant lied is not in itself evidence of guilt since defendants may lie for innocent reasons; so only if the jury is sure that the defendant did not lie for an innocent reason can a lie support the prosecution case”, see page 174 B.
It is of some import, in our opinion, that in that most recent case this Court referred to a “Lucas direction”, because that accords with our view of the development of the law that the decision in Lucas represented a major development in this aspect of the law. Further, we attach significance to the absence of any complaint relating to the judge’s directions on lies in the applications for leave to appeal in 1981 and in the first appeal in 1988-89. In the perfected Grounds of Appeal against Conviction of Michael Hickey drawn up on the 28th of April this year, these sentences appear:
“Since the date of trial the Courts have become increasingly aware of the dangers of a jury attaching too great an importance to allegations that a defendant has told lies. The Court of Appeal has now ruled that it is essential that an appropriate direction as to the correct approach to this question should be given”.
The conclusions we have reached are that the law in 1979 on lies in general did not require a judge to give any special direction to the jury unless the prosecution were relying upon alleged lies by an accused as corroboration of the evidence of a witness whose evidence required corroboration.
We turn to the directions which the judge did give and of which complaint is made. The first occurs at page 6 H – 7 A of the summing-up. The judge said:
“For example, if an accused gives evidence and you take the view that he is lying, it may assist the prosecution to indicate to you where the truth lies.”
Whereas this would not at the present time be an adequate direction on lies, it was not in our judgment a misdirection because here the judge was directing the jury that they had to take account of all the evidence in this case whether called for the defence or for the prosecution and that evidence called for the defence could assist the prosecution and that evidence called for the prosecution could assist the defence.
Complaint is made of the directions at page 91 C and 91 H -92 A where the judge was reminding the jury of Michael Hickey’s denials of knowing Robinson and Molloy prior to the 23rd of October 1978 and of knowledge of the Wordsley-Kingswinford area of Staffordshire. The judge not only directed the jury that if they were satisfied that these parts of Michael Hickey’s evidence were false that an association between him and Robinson and Molloy at the relevant time would be established and knowledge on his part of the area in which Yew Tree Farm was situated would be established but also went on to invite the jury to ask themselves why Michael Hickey had told lies about those matters? We are not persuaded that these directions would have been thought of as mis-directions in 1979. We accept that these directions would not be sufficient today.
The respondent concedes that the alleged lies told by Michael Hickey concerning his association with James Robinson and Patrick Molloy and his knowledge of the Wordsley-Kingswinford area would now call for a full lies direction. The respondent accepts that the absence of an appropriate warning is a matter which this Court may wish to take into account in considering the safety of Michael Hickey’s conviction. This is a further reason which has led us to our conclusion that the conviction of Michael Hickey is unsafe, albeit that this reason is not of the same weight as other reasons which have brought us to that view, as we shall now indicate.
The Insufficiency of the case against Michael Hickey
Mr Roberts for the respondent opened his submissions with regard to the appeal of Michael Hickey by saying:
“We agree that having regard to all the retractions and the fresh evidence, the evidence which survives is not sufficient to sustain his conviction. On such evidence there would be no prospect of a conviction.”
In his summing-up, the judge adopted the description of Michael Hickey’s counsel of the evidence against him as “consisting only of bits and pieces”, pointing out that the prosecution’s submission to the jury was that those pieces of evidence put together added up to a formidable case against Michael Hickey. We propose to look briefly at each of the pieces of evidence against Michael Hickey in the light of fresh evidence and fresh material which has come to light since the trial and, in several cases since the hearing of the first appeal, and then to express our conclusions on Michael Hickey’s appeal.
The most direct piece of evidence against Michael Hickey at his trial was that of Brian Jeffrey Sinton. In 1979 Sinton was serving a prison sentence. In March of that year he was transferred from a prison at Leeds to Winson Green prison, Birmingham. Sinton was not a Category A prisoner. Nevertheless in June of that year he was moved to D Wing, the wing in which Michael Hickey was being held, a wing reserved for Category A prisoners. On the 27th June Sinton had a shower at the same time as Michael Hickey. That was an irregular proceeding and should not have occurred. Michael Hickey accepted that whilst they were showering there was a conversation between them about the Carl Bridgewater murder. He denied that he had made the admissions of which Sinton gave evidence to the jury. Sinton’s evidence was that he had asked Michael Hickey “Why was it necessary? Did you do it?” and that Michael Hickey had replied “Between you and me and the four walls I had to because the kid was crying. The kid was howling and crying and he had seen me”. The pathologist’s evidence was that examination post-mortem did not disclose evidence that Carl Bridgewater had been crying. The respondents accept that the probability is that Sinton, like another prisoner witness in the case against Michael Hickey, Ritter, was deliberately planted by a prison security officer in the hope that he would be able to gather evidence against Michael Hickey. It is now shown that the investigating team requested that security officer to pass to them any “prison intelligence” that he was able to gather concerning the Hickeys and James Robinson who were being held in the D Wing of Winson Green Prison.
Since giving evidence at the trial, Sinton who is otherwise known as Barraclough has retracted and re-adopted the evidence he gave at trial on more than one occasion. He was called by counsel for Michael Hickey at the hearing of the first appeal. His evidence and that of his wife occupied several days of that hearing. This court on that occasion concluded that Sinton was to be treated as an entirely unreliable witness. The respondent did not seek to go behind that finding or to resurrect Sinton’s evidence for the purpose of the present appeal.
We turn next to the evidence of the other prisoner Mervyn Ritter. Like Sinton, Ritter was serving a sentence at Winson Green Prison. He was transferred to the security landing of D Wing of the prison on the 31st March 1979. He was of a Category which would justify his detention on that Wing, although again it seems probable that the security officer moved him to that wing so that he could gather evidence or intelligence against the Hickeys and James Robinson. The consequence was that Ritter was able to take his exercise at the same time as and in company with the Hickeys and James Robinson. The evidence he gave was, in the main, relevant to the case of James Robinson and incriminated him. It also had some probative value in the case against Michael Hickey added to which it presented Michael Hickey as a callous young man who derived amusement from the thought of a 13 year old boy being shot to death. It is clear from the judge’s observation to the jury during his summing-up that this witness had given his evidence in a very persuasive manner.
Ritter was, in reality a confidence trickster. The jury knew in summary the reasons for Ritter’s prison sentences, both that which he was then serving and earlier ones and of his criminal activities. What the jury did not hear which were made available to this court are the assessments of Ritter made by the prison authorities and the fact that since the trial Ritter has added to the evidence that he gave against James Robinson. The respondent in this appeal agreed that Ritter is aptly described as a “highly skilled, devious and manipulative conman”; that Ritter is a witness who must be treated with extreme caution and that a conviction which depended on his word alone could not be said to be safe. The respondent agrees that the additions to Ritter’s story many years later of his dealings with James Robinson are most unlikely to be true and reinforce the other question marks over his reliability. Moreover the message forms 15328 and 15330, were Ritter to be cross-examined on them, would probably demonstrate at least one downright lie.
The probative value of Ritter’s evidence in the case against Michael Hickey, even taken at face value, was not great. We consider that in the light of the material now available, no weight at all should be attached to his evidence in so far as it concerns the case against Michael Hickey.
At this point we would make some general observations. First, it is perfectly proper for officers investigating a serious offence or serious offences to request a prison security officer to inform them of any “prisoner evidence” or “prison intelligence” which may come to that officer’s attention concerning those remanded in custody charged with such offences. Indeed it may well be that in such cases the police would fail in their duty were they not to make such a request. The use within prison of informants who are serving sentences and who are thought to be reliable informants is unobjectionable. Before it is decided by the prosecution to call a fellow prisoner to give evidence of alleged incriminating remarks by an accused who has been remanded pending his trial in prison, we consider that it is necessary for the prosecution to research fully the character and antecedents of that prisoner with the Criminal Record Office and the prison authorities, and, if it is decided to call the fellow prisoner as a prosecution witness, to make the results of that research available to the defence. Whether, if invited to do so by the defence, the prosecution should be obliged to lay the character of such a witness as disclosed by that research before a jury to avoid the risk of the accused’s character becoming admissible in evidence, is a matter which might be considered as a possible amendment to the existing rules.
The prosecution relied upon evidence of an association between Michael Hickey and Vincent Hickey on the one hand and James Robinson and Patrick Molloy on the other which preceded the 19th September 1978 linked to Michael Hickey’s assertions during interview that he had not begun to associate with James Robinson until after the 23rd October of that year and James Robinson’s release from custody on that day. Insofar as that part of the case was based on the evidence of Michael Hickey’s co-defendant, James Robinson, no new matter has developed since trial. That piece of the prosecution case was based in part on the evidence of Helen Johnston, the barmaid at the Dog and Partridge. Her evidence on this aspect of the case was not of great weight, because although she spoke of James Robinson and Patrick Molloy being regulars at the Dog and Partridge before the 19th September 1978, as were Michael and Vincent Hickey, she gave no evidence of them drinking together. We accept that her credibility as a witness has been undermined by fresh information which is before this court.
The next piece of the prosecution case was Reginald Hickey’s evidence that he, Michael and Vincent Hickey had knocked on doors in the Wordsley- Kingswinford area of Staffordshire, coupled with Michael Hickey’s denials during interview that he knew that part of Staffordshire in which Yew Tree Farm is situated. Reginald Hickey withdrew his evidence at the first appeal and gave his reasons for giving evidence which incriminated his two cousins. It is conceded by the respondent that no reliance can be placed on his evidence.
Another witness in the case against Michael Hickey was Prison Officer Kelly. The evidence of this witness related to two matters. First the conversation which the prison officer overheard between Vincent Hickey and Michael Hickey about their alibi involving being at the Bristol Road Garage on the afternoon of the 19th September 1978, and secondly that Michael Hickey, whilst denying to this witness any involvement in the murder of Carl Bridgewater, had on two occasions asserted that James Robinson had shot the newspaper boy. The first of those occasions was on the 2nd April when the witness said that Michael Hickey had said to him “Robinson caused all this, Ned. He is a raving lunatic. He shot Carl”. The second was on the 28th June 1979 when PO Kelly gave evidence that Michael Hickey had said “That bastard Jimmy is dragging me down for this. He shot the babby; he’s fucking mad”. When he gave evidence Michael Hickey denied making either of these statements.
With regard to this witness’ evidence the submissions that are made on Michael Hickey’s behalf are that the first aspect of his evidence now has less force because it is accepted by the respondent that Michael Hickey and Vincent Hickey were at Bristol Road Garage sometime during the afternoon of the 19th September 1978 so that the prison officer could not have been overhearing the fabrication of a totally false alibi. Secondly the statements that James Robinson had shot Carl Bridgewater, even if made, are not necessarily admissions by Michael Hickey of presence at Yew Tree Farm. They are consistent with Michael Hickey believing James Robinson to have been guilty and to be capable of “going mad” on the basis of what he, Michael Hickey had experienced at Chapel Farm. We accept that there is material both in the statements of the occupants of Chapel Farm and in the account given of the Chapel Farm robbery by Michael Hickey to the police, indicating that James Robinson at Chapel Farm had the shotgun, Exhibit 25 and came close to losing total control over himself. The third submission that is made is that this witness’ evidence has to be taken in context, the context being Michael Hickey’s persistent denials to this witness of being involved in the murder.
The next witness was Michael Lee who gave evidence of the conversation between himself and Michael Hickey in a car in which Michael Hickey told him that Joe Hickey and Vincent Hickey were disposing of property stolen “Off that farmhouse job. You know, that kid.”, and that Michael Hickey had then added “It is nothing to do with us, just someone we know”. This conversation did not appear in either of the first two statements made by this witness on the 3rd December and the 16th December 1978. The first mention of such a conversation came in this witness’ third statement on the 4th January 1979. That statement made no reference to the words “You know, that kid”. Following the making of that statement an officer was instructed to see Mr Lee and to ask whether he was able to enlarge on his account of that conversation. Mr Lee was not able to do so according to the entries on TM 15196.
When Mr Lee gave evidence it was put to him in cross-examination that he had never previously mentioned any reference to “That kid”. No reference was made to the first two statements made by this witness in December 1978 and the absence of any mention of this conversation from these statements. Further, counsel for Michael Hickey at his trial would have been unaware that the police had been to Michael Lee following his statement of the 4th January 1979 to see if he could enlarge on the conversation in the car about the disposal of stolen property. It is said that had these matters been explored before the jury, it would have undermined this witness’ evidence that such a conversation had occurred and strengthened Michael Hickey’s account that there had been no such conversation.
The first statement given by this witness to the police related to Chapel Farm and not to Yew Tree Farm. The second statement did relate to the 19th September 1978 and was to the effect that neither Michael Hickey, Vincent Hickey or James Robinson had been in the Dog and Partridge that afternoon, which the witness was able to remember because it was the day that Dave Waller’s baby was born. The statement also contained a passage that the Hickeys were violent people and that Lee and his brother had first hand experience of that fact. We can quite understand why counsel for Michael Hickey at his trial could not refer to the first statement of this witness, because it would have introduced the Chapel Farm robbery and would not have wished to cross-examine on the second statement. We accept the respondent’s submission in relation to TM 15196 that it would not have added significantly to the points that could have been made and were made on Michael Hickey’s behalf at his trial with regard to this witness’ evidence.
In our view the main features of this witness’s evidence are first that his recollection of the conversation was far from being firm, and second that his account of the conversation did not provide any direct evidence that Michael Hickey had himself been at Yew Tree Farm. This evidence although capable of providing support for direct evidence of guilt, could not of itself amount to direct evidence of Michael Hickey’s involvement in the murder of Carl Bridgewater or the burglary at Yew Tree Farm.
The same observation applies to the other witness relied upon by the prosecution in the case against Michael Hickey, namely Dennis Eaton. Mr Eaton was the taxi driver who drove Michael Hickey in his taxi on the afternoon of the day on which Vincent Hickey had been arrested, the 4th December 1978. Mr Eaton gave evidence that Michael Hickey told him to drive off quickly and was in a state of panic because the police had just taken Vincent Hickey in for questioning about the Wombourne murder. That was not included in that witness’ witness statement made on the 21st December 1978. In that statement that witness gave an account of having Michael Hickey as a passenger in his taxi some 6 weeks prior to the 21st December 1978 when Michael Hickey had been laughing and bragging about his “brother” Vincent Hickey being “pulled” by the police for the Wombourne murder but then being released because the police did not have sufficient evidence against him.
We view this part of Mr Eaton’s evidence with some suspicion. We agree with the judge’s description of it as being no more than a straw in the wind.
The other part of Mr Eaton’s evidence related to a conversation he claimed to have had with Michael Hickey at the Brookhill Remand Centre, when he was visiting that Centre. According to Mr Eaton the conversation ended with Michael Hickey saying to him “Well, I was with you, remember, in your taxi. Remember?” That conversation was denied by Michael Hickey when he gave evidence. It was relied upon by the prosecution as an attempt to bolster the initial untruthful account of his movements on the 19th September 1978 given by Michael Hickey to the police during interview. This evidence by Mr Eaton and the initial fabricated alibi could provide support for other evidence indicating Michael Hickey’s involvement in Yew Tree Farm, but on their own were not evidence of guilt.
The remaining piece of evidence against Michael Hickey is the fingerprint confession to which we now turn.
THE FINGERPRINT CONFESSION
Part of the prosecution’s case against Michael Hickey was his alleged reply to a question by DS Williams “Was the paperboy smiling when the gun went off?” “No he wasn’t”. The judge in summing-up described this as one of the vivid parts of the evidence and observed that the jury would no doubt have it well in mind. The judge after directing the jury that the first issue was whether that exchange ever took place, warned the jury that there was sufficient ambiguity in that remark to make it dangerous to convict on it alone. But the judge went on to remind the jury that the officers who alleged that they had been present and heard how that remark had come out, attached importance to it: that they said that, from that moment, Michael Hickey’s attitude changed, that he realised he had made a slip.
This exchange was alleged to have occurred on the same day as the Director of Public Prosecutions had advised the investigating officers that in his opinion there was insufficient evidence with which to charge Michael Hickey with the murder of Carl Bridgewater or the burglary at Yew Tree Farm. The witness statements of DS Williams and DC Massey containing the alleged exchange are dated the 4th of January 1979.
This part of the evidence has had light turned on it by the disclosure in December 1995 of further evidence relevant to it, in the form of what appears to be a record of this interview and others on the 21st and 22nd of December 1978. This document together with a sheep scab report on the back of which DS Leek had listed interviews he had had with Vincent Hickey and Michael Hickey came to light during the investigation by the Merseyside Police into the conduct of the inquiry into Yew Tree Farm in 1994 – 5.
We state our conclusions at the outset. We consider it unlikely that such question and answer were uttered. We are satisfied on the balance of probabilities that even if such an exchange took place, Michael Hickey was not cautioned before it took place as the Police witnesses claimed.
Michael Hickey was interviewed on Thursday the 21st of December 1978 at 1940 hours to 2015 hours by DI Fowlie and DS Leek and at 2025 hours to 2055 hours by DC Crotty and DC Massey. The following morning Michael Hickey was interviewed from 0945 hours to 1035 hours by DS Leek and DC Massey and again between 1315 hours and 1330 hours by the same two officers. Thereafter the evidence that the jury heard was that at 1335 hours DC Massey took Michael Hickey’s fingerprints in the Surgeon’s room in the cell block at Wombourne Police Station. That at that time DS Williams, who was normally DC Massey’s partner, but was not involved and had not been involved in the interviewing of Michael Hickey entered the Surgeon’s room and there then followed a conversation principally between Michael Hickey and Detective Sergeant Williams in which the alleged slip occurred.
The new evidence is a “draft report” headed “Record of an interview by DI John Fowlie and DS Leslie Graham Leek of the Number 4 Regional Crime Squad, with Michael Hickey at Wombourne Police Station on Thursday 21st December 1978″. The whole document is some 23 pages long. Pages 1 to 9 are typed up notes of an interview on Thursday the 21st starting at 1940 hours and ending at 2015 hours. Pages 9 to 14 are typed up notes of the interview which took place at 0815 to 0945 on Friday the 22nd of December. The typing changes at the top of page 14 so that the last question and answer of that interview are in different type, but the same type as for the next interview with Michael Hickey by DS Leek and DC Massey between 1315 and 1330 hours. The typed version of that interview ends at page 17 with the words “at 1.30 pm that day DC Massey commenced fingerprinting Hickey”. The typed version continues with these words at page 17 “At 1.35 pm on Thursday 21st December 1978 DS Clive Williams of No. 4 RCS visited the Surgeon’s room in the cell block of Wombourne Police Station.” The typed version continues to page 19 ending with the words “I was then called out of the room and the interview was concluded”. Pages 20 to 23 are for the most part manuscript notes written by DC Massey. However the top of page 20 is the original sheet 14 containing the last question and answer of the interview which ended at 1035 hours on Friday the 22nd of December. Immediately under that is typed these words “At this stage I concluded the interview with Hickey and was present when DC Massey took his fingerprints”. The “I” in this sentence must refer to DS Leek. The sentence has been crossed out in manuscript, the manuscript being that of DS Leek, according to information he gave to the Merseyside Police in 1994. The heading of the manuscript record reads “2nd interview 1.15 – 1.30 DS Leek and DC Massey”. The manuscript ends on page 23 with this entry “At 1.35 pm that day whilst I was fingerprinting Michael Hickey DS Williams came into the room” and then the first question by DS Williams is recorded. All that is crossed out.
The reverse side of the sheep scab notice is a record made by DS Leek of interviews with Michael Hickey and Vincent Hickey. It does not record an interview for Friday the 22nd of December between 1315 and 1330 hours.
The detention record shows entries made by DS Leek, not by the Custody Officer, of an interview at 1315 hrs and fingerprinting at 1330 hours. That detention record contains no entry showing the presence of DS Williams in the cell block.
There was no mention of this exchange between DS Williams and Michael Hickey in the subsequent interviews of Michael Hickey during the evening of Friday the 22nd or on the 28th of December although the interviewing officers on those occasions, DI Turner and DS Leek both claimed to know of Michael Hickey’s alleged slip. The draft notes do not record Michael Hickey being cautioned either during the interview between 1315 and 1330 or whilst his fingerprints were being taken. When DC Massey and DS Williams gave evidence at the appellants’ trial both of them maintained that during the exchanges between DS Williams and Michael Hickey whilst Michael Hickey’s fingerprints were being taken, DS Williams had said shortly before the vital exchange “What about Yew Tree Farm then, are you going to tell us about that. You are not obliged to say anything but what you say may be given in evidence, remember that”. At page 18 of the document only the first part of that question “What about Yew Tree Farm then, are you going to tell us about that?” appeared.
When DS Leek gave evidence he said that his notes of the interview at 1315 on the 22nd of December were made immediately after that interview. DC Massey said that he made the notes of that interview and of the interview whilst fingerprinting was taking place at about ten to two that day. “It was almost immediately after the interview came to an end”. DS Williams told the jury that he made his notes of the interview during fingerprinting with DC Massey at 2 o’clock that afternoon in the old Charge Room at Wombourne Police Station. They had sat down roughly 15 minutes after the interview had ceased. His actual notes were written up some half an hour later. These answers in examination in chief were not explored in cross-examination. This evidence taken at face value makes it difficult to understand how DS Leek and DC Massey could arrive at identical records for the 1315 to 1330 interview.
The Merseyside Police in 1994 or 1995 sought explanations from DS Williams, DS Leek and DC Massey as to the 23 page document headed “Draft report”. None of them was able to offer any explanation of the document’s purpose. DS Leek conceded that the content of the typed document must have been prepared from information supplied by himself, DC Massey or even DI Fowlie. He made that concession because of the way the document had been typed which represents the way in which he used to make pocket book entries. He identified the manuscript on pages 1, 14, 17 and the deletion of the two sentences on page 20 as being his handwriting. He also identified as his handwriting the entries on the back of the sheep scab notice. DC Massey said that the manuscript on pages 20 to 23 was his and would most certainly have been copied from his pocket notebook. His practice was write out on paper his evidence from his pocket book and give it to the typist to copy onto the statement forms.
The respondents made certain submissions and certain concessions in relation to the “Draft report”. The first submission was there could be no doubt that the fingerprinting of Michael Hickey occurred on Friday the 22nd of December at 1330 hours and was performed by DC Massey. Second it was not disputed that DS Williams was present in that Michael Hickey said that there was a police officer present whom he did not know but who was dressed in a sheepskin coat. DS Williams possessed a sheepskin coat although he told the jury that he was not wearing it at that time. The respondent submitted that as a consequence of these facts there is nothing sinister or significant in the wrong date appearing in the draft notes at page 17 for the fingerprinting. It is clearly an error by the typist whose has read in the manuscript note at page 23 that it was at 1.35 pm the same day, the typist has then turned back to page 1 of the draft notes typed by another typist and found the date Thursday the 21st, being unaware that at page 9 the date had changed to Friday the 22nd. We accept that this is the probable explanation for the wrong date appearing at the beginning of the record of the fingerprint interview.
The respondents went on to submit that the typed pages 14 to 19 were typed from DC Massey’s manuscript notes of the 1315 to 1330 interview and that DC Massey’s manuscript notes were discontinued at page 23 with the last five lines introducing the interview during fingerprinting at 1.35 pm so that this manuscript note could be used as the basis of DS Leek’s witness statement. This is more difficult to accept because, if DS Leek’s evidence at trial was correct, he had his own pocket book notes of the 1315 to 1330 interview.
The account of the fingerprinting interview in the “Draft report” contains no reference to a caution. The respondent concedes that this omission may be significant. We quote from the respondent’s skeleton argument “If (as is likely) “the Draft Report” was typed up from DS Williams’ pocket book the prima facie inference is that the pocket book entry did not contain the caution; and the prima facie inference from that is that the caution was not in fact given. We have no evidence, at this distance of time and in the absence of the pocket book itself, to rebut those inferences. The pocket book will have been routinely destroyed many years ago. Accordingly we cannot properly resist the contention that the “Draft report”, if available for trial, might have affected the position in one or other of two ways: one, it might have resulted in the judge excluding the “fingerprinting” conversation altogether; and two, if not, it might have caused the jury to take a different view of DS Williams and DC Massey, any suspicion that the officers had adjusted their evidence by inserting a non-existent caution would have been extremely damaging”.
We have already stated our conclusions concerning this piece of evidence. We shall draw the Director’s attention to this part of the judgment.
Before stating our conclusions on the sufficiency of the case against Michael Hickey in the light of what is now known, we observe that there was an unfortunate line pursued, albeit briefly, in cross-examination of this appellant of which the jury were reminded in summing-up, albeit in neutral terms. When Vincent Hickey was arrested on the 4th December 1978 to be interviewed about offences of deception and robbery at Chapel Farm, Michael Hickey left the Birmingham area and went to live in Wisbech at an address where he would not be traced for some time. Michael Hickey’s motives for behaving in that way can be known only to him. They could have included a wish to avoid questioning about Yew Tree Farm but they could equally have been a wish to avoid arrest and questioning concerning the armed robbery at Tesco’s stores and the armed robbery at Chapel Farm. The cross-examination established that Michael Hickey had gone to Wisbech as soon as he heard that Vincent Hickey had been arrested; that he had left the address in Wisbech without returning for his clothes because he had heard the police were looking for him at that address and that he had returned to another address in Birmingham where he had, in effect, been in hiding for some six days, before being arrested by the police on the 20th December 1978. Michael Hickey agreed with all these matters when they were put to him. He was not asked by prosecuting counsel why he had behaved in this way. We accept the submission by Mr Fitzgerald on Michael Hickey’s behalf that the jury must have concluded that Michael Hickey was afraid of being arrested and questioned about Yew Tree Farm. His counsel at the trial tried to neutralise the effect of these questions in cross-examination by establishing in re-examination that at the time of Vincent Hickey’s arrest on the 4th December 1978, Michael Hickey was unaware that he was being arrested for the murder of Carl Bridgewater (which indeed he was not), and by asking the question “Was your departure from Birmingham and arrival at Wisbech anything to do with the Carl Bridgewater murder investigation?” to which Michael Hickey replied that he did not know anything about the Carl Bridgewater murder investigation until he was arrested on the 20th December. We accept Mr Fitzgerald’s submission that the jury, ignorant of the facts of the Tesco armed robbery and the Chapel Hill Farm armed robbery, must have found that answer difficult to believe.
It is a perfectly normal point for the prosecution to make in a case of serious crime that following the crime when the police show interest in the defendant the defendant has gone to ground. Nevertheless in the particular circumstances of this case we consider that it would have been better had these matters not been brought to the attention of the jury.
The conclusions that we have reached on the insufficiency of the case against Michael Hickey are that we are satisfied that, although it is not possible to say that there is no evidence against Michael Hickey in respect of the Yew Tree Farm offences, such evidence as there is is of such a tenuous character that a reasonable jury properly directed could not properly convict on it. Had the judge at the end of the prosecution case known what we in this court know about the evidence constituting the case against Michael Hickey, we have no doubt that he would have stopped the case against Michael Hickey. Indeed, had the Director of Public Prosecutions known what we know in this court, we are sure that he would have maintained his first view expressed on the 22nd December 1978 that there was insufficient evidence to justify charges being brought against Michael Hickey in respect of Yew Tree Farm. Thus we would allow the appeal of Michael Hickey quite independently of the fresh evidence concerning the inadmissibility of Patrick Molloy’s confession. We make this further observation that in his case, even if nearly 18 years had not elapsed between trial and the allowing of this appeal, we would not have ordered a retrial.
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