O'Toole, R v

LORD JUSTICE LAWS: These appeals against conviction are brought upon a reference made by the Criminal Cases Review Commission ("CCRC") under section 9 of the Criminal Appeal Act 1995.

The appellants were convicted of an offence of robbery by a majority of the jury of ten to one at the Birmingham Crown Court before His Honour Judge Ross QC as long ago as 3rd May 1978. A co-defendant, Lawrence Wilcox, was on the same day convicted alongside them of the same offence. O'Toole was sentenced to seven years' imprisonment, Murphy to eight years and Wilcox to seven years. There were two other defendants, Molyneux and Higgins. They were tried separately because they had absconded and were not available to be tried with the appellant and Wilcox. Murphy also pleaded guilty to two wholly unrelated offences of handling stolen goods. They play no part in this appeal.

Murphy sought leave to appeal his sentence passed for the robbery to this court. After refusal by the single judge he renewed the application to the Full Court on 1st May 1979. It was dismissed and the court, Shaw LJ, Kilner Brown and Wood JJ, made a loss of time order of 42 days. O'Toole made no application to this court for leave to appeal against conviction or sentence.

The essence of the appeals is that since the appellants' convictions there has emerged a catalogue of corruption and misconduct in and by the West Midlands Serious Crime Squad some of whose officers were involved in the conduct of this case. Particular officers are impugned and we shall give the detail. Apparently no less than 33 appellants have had their convictions quashed because those convictions depended on alleged confessions made to officers of the West Midlands Crime Squad. Other cases have collapsed at trial.

We must first outline the facts. The robbery in question took place at 12.55 p.m. on 7th April 1977 at the British Leyland vehicle manufacturing plant at Ward End, Birmingham. A group of four men, three of whom were armed with sawn-off shotguns, took two boxes of wage packets from the men who were distributing them around the British Leyland factory site. The boxes contained more than £12,000 in cash. The robbers drove off in a stolen white Ford Cortina. O'Toole and Wilcox were arrested about one and a half miles from the scene at 1.19 p.m., that is about 25 minutes after the robbery. On arrest they claimed to have been at a carpet warehouse on a trading estate. Murphy was arrested in the early hours of the next morning.

We will deal first with the police interviews of and the Crown case against the appellant O'Toole and then Murphy.

O'Toole was first interviewed at 1.50 p.m. on the day of his arrest by DS Matthews and DC Sutcliffe both of the West Midlands Serious Crime Squad. He said he had met Wilcox earlier that day and they had gone together to a carpet warehouse on the Saltley Trading Estate where they had spent about an hour and a half. They had spoken to the salesman there, Mr Taylor.

A second interview commenced at 3.30 p.m. after the officers had made further enquiries. It was put to O'Toole that his account did not match what had been said by Wilcox and that Mr Taylor had told the police that they, that is to say he and Wilcox, had been at the warehouse for no more than 15 minutes. DS Hornby had apparently taken a statement from Mr Taylor, who was not, however, called at the trial. DS Hornby figures particularly in the case relating to Murphy. We will have more to say about him.

It was put to O'Toole that he and Wilcox had been seeking to use the salesman to provide them with alibi and that the getaway car used by the robbers had been found at the warehouse. The Crown case was that O'Toole then said:

O'Toole was interviewed a third time by the same officers at 7.00 p.m. that day. They told him that Wilcox had made admissions about the offence and implicated him, Murphy and Higgins. O'Toole is then said to have confessed to the robbery.

At 1.15 a.m. on 8th April 1977 the same officers saw him again and showed him a confession statement made by Wilcox. It was said that O'Toole then agreed to make a statement himself. DS Matthews proceeded to write out the caption of a statement form and O'Toole signed the caption. DS Matthews then began to write the statement at O'Toole's dictation. What he wrote included a confession to the robbery but before he got very far DC Lloyd entered the interview room and said:

The Crown deployed some forensic evidence against O'Toole. Human head hairs taken from the floor of the Ford Cortina used as the getaway car showed detailed agreement with hairs taken from O'Toole. There were also blue cotton fibres recovered from the front passenger seat of the car showing detailed agreement with fibres from O'Toole's jeans.

We turn to the case concerning Murphy. He was interviewed by DS Hornby and DS Robinson at 2.45 a.m. on 8th April 1977. He denied having been involved in the robbery. He is said to have admitted having been with Higgins all the previous day, but added:

He declined to make a written statement. DC Hornby was said then to have suggested that a party which Murphy had attended the night before had been a celebration of the robbery and if the police went to the address they would find the guns and money there. Murphy is alleged to have replied:

On his arrest Murphy was found to have been in possession of two keys on a fob marked "Atlas Garage". On 12th April 1977 DS Hornby and DC McClelland went to this garage where a Mrs Hazel Roberts identified the keys as belonging to a flat at 138 Washwood Heath Road. Hornby and McClelland searched the flat the same day and claimed to have found a sawn-off shotgun hidden there wrapped in a newspaper dated 7th April 1977, which was, of course, the date of the robbery. Mr Raggatt for the Crown addressing us this morning says that Mrs Roberts corroborated the finding of the gun.

We should say something about the cases made for the defence. A good deal of the documentation that must have existed or come into existence at the time of trial is missing. Thus we have no transcript of the judge's summing-up, though there is a transcript of his sentencing remarks. We do have a set of handwritten notes made by Murphy while he was on remand facing trial. The paucity of the documentation is of some significance because it has meant that there is some uncertainty, and the parties are not entirely agreed, as to exactly how the appellants' cases were run at trial, in particular as to the extent of any overt attack made on the police witnesses. In broad terms it is clear that both appellants ran alibi defences. O'Toole apparently contended that the police account of the statement under caution was wrong and he denied having signed the caption to the statement. Murphy apparently claimed that he had not made the incriminating remarks attributed to him and knew nothing about the gun found in the flat. His manuscript notes contain a clear accusation that the gun had been planted, though that does not of itself demonstrate beyond doubt that an allegation of plant was put as such.

The CCRC has interviewed both appellants. Both have said, as we understand it, that their defences stopped short of a direct accusation of lying against the police officers. They apparently indicated that it would have been very unusual in 1978 to accuse police officers of fabricating evidence. They would have risked having their previous convictions, which are in both cases for serious offences, rather worse in Murphy's case, put before the jury.

This does not entirely square with the trial judge's sentencing remarks in which, addressing both appellants and the co-defendant Wilcox, he said (sentencing remarks transcript page 5E):

Mr Turner for the appellants submits that the bad character of both appellant must have gone before the jury because it seems plain there was a clear assault made against the integrity of the evidence given by the police officers.

It appears that DC McClelland, who, as we have said, went with DS Hornby to the flat where the gun was found was not called to give evidence, nor was any statement by him read to the jury. The Crown say that that can only be because his evidence was undisputed, but, at any rate, that is how it was put in Mr Raggatt's skeleton. There was no allegation at the trial, therefore, that the gun had been planted. It is however clear that Mrs Roberts was called as a live witness, as of course was DS Hornby. It is suggested for Mr Murphy that an express allegation of plant must have been made. We should notice also that there was a voire dire held in the absence of the jury in which, as we understand it, there was a challenge to the admissibility of some of the police evidence. So much is suggested by the remaining court log of the trial, though we have no relevant transcript.

We are not going to get to the bottom of the question whether or how far the evidence of police officers was expressly and distinctly attacked at the trial and whether or how far they were then accused of misconduct in their dealings with the appellants. We do not think, however, that this greatly affects the conduct of our task. It is certainly not shown that the appellants accepted or admitted the incriminating elements in the police evidence, whether relating to interviews, O'Toole's statement, or the objective evidence, relating in particular to the gun.

That being so there remains a question, and it is the question to which the CCRC reference essentially seeks an answer. Had the later facts relating to the West Midlands Serious Crime Squad in general, and more importantly some of the officers concerned in this case in particular, been known to the defence at the time of trial, how then might the appellants' defences have been conducted and what result might have been obtained?

We should note in passing that in their accounts given to the CCRC the appellants have put forward substantive cases in their defence. Murphy says he was abused and intimidated by the police and he made no confessions. O'Toole says he was beaten up by police officers, especially DS Matthews, when he refused to make a statement admitting his part in the robbery.

We shall, of course, have to consider the law relating to the scope for reliance on alleged or proved police misconduct by a defendant or appellant in a case other than that or those in which the misconduct arose, but it is convenient first to describe the facts concerning the West Midlands Serious Crime Squad in general and some of the officers in particular on which reliance is placed before us.

In August 1989 the West Midlands Serious Crime Squad was disbanded at the behest of the chief constable. An enquiry, the Shaw Enquiry, was conducted by the West Yorkshire Police under the supervision of the Police Complaints Authority. It examined working practices, associated matters and individual complaints relating to investigations by the Squad between 1st January 1986 and 14th August 1989, a period which, of course, substantially post-dated the investigation into the robbery of April 1977 which led to the prosecution of these appellants. The enquiry identified serious instances of malpractice by members of the Squad, including the physical abuse of prisoners, fabrication of admissions, planting of evidence, and mishandling of informants. The appellants say, as we indicated earlier, that no less than 33 convictions have been quashed being tainted by misconduct by members of the squad.

That is the general picture. We must describe the position relating to the individual officers with whom we are concerned in this case: first the officers who were concerned with O'Toole. The relevant officers about whom there are specific material facts are DS Lloyd and DS Matthews. It will be remembered that DS Lloyd was the officer who entered the interview room while DS Matthews was allegedly taking O'Toole's statement. The Crown submit that his role was peripheral and any view taken about later misconduct by him can in reality have no impact on the safety of these appellants' convictions. We shall come to the submissions in due course.

In a case called Jones and O'Brien, tried at the Wolverhampton Crown Court in June 1987, DS Lloyd, along with a DC Shaw, conducted an interview with the defendant O'Brien. It was demonstrated that the interview could not have been recorded within the period of time shown to have been available for it. In Meads [1996] Crim LR 519 this court commented on Lloyd's evidence in Jones and O'Brien and accepted that he could have been cross-examined in the Meads case about his involvement in that investigation. In Meads the court also considered Lloyd's role in the case of DelroyHare and it was shown by scientific evidence that the record of interview presented to the jury in that case was not the original version. Again, this court accepted that Lloyd could have been cross-examined in Hare about that matter. In Meads itself the writing speed at which two interviews in which Lloyd was involved -- he made the notes himself in one of them -- were so fast that the court concluded the records of interview could not be regarded as reliable.

The other officer in O'Toole's case was DS Matthews. He played a much greater part than Lloyd as the facts as we have recited demonstrate. The factual points about him are crisply summarised in the CCRC statements of reasons and that account is not significantly embellished by other material. This is what the CCRC said (we leave out some unconfirmed allegations) (paragraph 51):

In addition it transpires that DS Matthews was one of the officers involved in McIlkenny (1991) 93 Cr App R 97, the so-called Birmingham Six case. He was concerned in the interviewing of one of the defendants, Patrick Hill. Hill's interview was challenged at trial. Matthews, it is right to emphasise, was not the subject of any specific criticism in this court, but the court made this general observation:

We may turn to the officers involved in Murphy's case. They are DS Hornby and DC McClelland. DS Hornby was allowed to retire from the West Midlands Police on health grounds very shortly after the Serious Crime Squad was disbanded in August 1989. Consequently, in line with the rules subsisting at the time, he was not the subject of any disciplinary proceedings. The rule allowing officers to avoid disciplinary sanction by retirement has since been abolished.

Hornby was, like Lloyd, involved in the Wolverhampton case of Jones in 1987. He gave evidence about the interview as respects which scientific tests showed that two pages containing admissions were written at a different time from the rest of the interview and then inserted between existing pages of the notes. In October 1991 this court quashed the convictions of Gerald and Robert Gall and Daniel Lynch. DS Hornby was found to have been involved in the suspicious disappearance of a file of witness statements and the manufacture of offences which an informant, Jarvis, later asked to have taken into consideration.

That case was referred to in Treadaway, 18th November 1996, in which Rose LJ said:

In Dunne, Brown and others [2001] EWCA Crim 169 counsel for the Crown accepted in terms, after reviewing a number of cases, that DS Hornby could not be put forward as a witness of truth.

The appellants rely on further details relating to Hornby gleaned from the reports of the Shaw Enquiry and associated materials which have been disclosed by the Crown. They involved fabricated interviews and confessions as to which chapter and verse is given. The important fact here, as it seems to us, is that the Crown have categorically accepted that Hornby cannot properly be relied on as a witness of truth.

DC McClelland. As we said he did not give evidence at the appellant's trial, nor was any statement of his read. However, as the CCRC observed (paragraph 52 of their statements of reasons in Murphy), the Crown might have sought to bolster Hornby's evidence by calling him. McClelland retired from the force in 1991 and no disciplinary charges have been laid against him.

In the case of Delroy Hare, to which we have already referred and in which Hornby was also involved, the jury in acquitting Delroy's brother Errol must have rejected the evidence of Hornby and McClelland as to admissions said to have been made by him. It was a case where he, Errol, had refused to sign the notes of interview.

McClelland was also involved in Jones and O'Brien at Wolverhampton and in the falsification of a confession dishonestly inserted in the notes of an interview of Jones. The appellant puts forward some other examples of corrupt conduct of McClelland entered into jointly with Hornby.

We turn to the law. What approach does the law prescribe to the use of such material as this arising in other and, as it happens, much later cases, but which, if available at the time of trial, might have had some impact on the jury's verdict? The starting point is the decision of this court in Edwards (1991) 93 Cr App R 48. The court held that there was no hard and fast rule as to what cross-examination might be allowed, or, if later events were relied on, what notional cross-examination might be contemplated.

Taking the matter shortly, the CCRC was, in our judgment, right (see the reasons in Murphy paragraph 33) in distilling from the decision in Edwards the following three categories in which the evidence of a police officer's conduct might be canvassed in another case:

In addition, however, the appellants draw attention to Zomparelli No 2, 23rd March 2000, in which Lord Bingham CJ strongly endorsed the approach in Edwards, but stressed two additional points. This is what he said:

Next, we should notice the decision of this court in Williams and Smith [1995] 1 Cr App R 74, to the effect that where such matters are admissible they are no less admissible on appeal merely because on the facts they involve events later in time than the events in question in the particular case. However, the length of time between the misconduct relied on and the convictions sought to be impugned can be a relevant factor in assessing the impact of a putative attack on an officer's credibility and the safety of the conviction.

In Deans [2004] EWCA Crim 2123 this was said by Maurice Kay LJ at paragraph 37:

There is also authority for the proposition -- though, with great respect, we have some doubt whether it is really a point of law rather than one of good common sense -- that misconduct by police officers may be fatal to a conviction even though their tainted evidence is supported by officers of whom there is no criticism whatever: see Guney [1998] 2 Cr App R 242. That is particularly relevant here because the Crown say that the evidence of Hornby of the interview of Murphy on 8th April 1977 was supported by that of the then DS Robinson, who eventually retired in the rank of detective chief inspector after over 32 years of service with a record of no less than 14 commendations or awards.

In the light of all this learning the officers Lloyd, Matthews, Hornby and McClelland in our judgment could, as the CCRC opined, properly have been cross-examined on the matters to their discredit which have emerged and which we have summarised.

What then is the effect on the safety of the convictions? The Crown through Mr Raggatt make these points, part in writing and part by his submissions this morning. (1) The long passage of time between the appellants' trial and their approach to the CCRC, which was made in 2001, is a relevant factor against them, so, and more particularly, is the passage of time between the investigation and the much later events showing corruption of the relevant officers. (2) So also is the fact that neither appellant sought to appeal their convictions at what might be called the ordinary time, nor did the other defendants accused of the robbery. (3) Fresh evidence obtained by the CCRC shows that O'Toole indeed signed the caption to the statement, though he denied doing so, and his fingerprint is on it. (4) DS Hornby was corroborated by the blameless DS Robinson and Matthews by DC Sutcliffe. Again there is nothing said against Sutcliffe. (5) The recovery of the shotgun was not as such challenged at the trial, and, says Mr Raggatt, Mrs Roberts supported the Crown case in relation to it. Nor is there anything, he says, to impugn the evidence about fibres and hairs. He was at pains to emphasise this morning the proposition that there is no objective material contemporary to the trial which is apt to cast any doubt on the accounts given by the police officers either of the interview process or the finding of the gun, fibres and hairs. (6) DC Lloyd's evidence was peripheral.

There was undoubtedly a formidable case against these appellants. However, it seems to us inescapable that it critically depended on the evidence of police officers, notably Hornby and Matthews, whose characters have subsequently been gravely tainted, especially that of Hornby. We wholly accept that it would be an abandonment of our duty simply to jump to conclusions. We are, however, in no position to know what might have been the effect on the jury had the defence been armed with what is now known about these officers and used it in cross-examination. We cannot say that that material could not reasonably have induced a doubt in the jury's mind. We fear that the situation cannot be saved by the fact that other officers, blameless and well commended, stood alongside Hornby and Matthews. The fact that there was no appeal at the time by these appellants is marginal at best. There may have appeared no viable grounds of appeal. The fact that other defendants did not appeal is, in our judgment, frankly irrelevant. The passage of time cannot save the case for the Crown despite the weight attributed to this factor by Mr Raggatt. We cannot know or say when officers in the West Midlands Serious Crime Squad were first tainted with corruption. The uncertainty which remains as to how exactly the defence cases were run at trial cannot for reasons we have already given help the Crown either.

We are not of course -- and we desire to emphasise this -- judging the guilt or innocence of these men; far from it. We repeat, there was a formidable case against them. But in the end these convictions were obtained largely on evidence which may have been false in material respects. As it was put in Pendleton [2001] UKHL 56, the material now known about the officers, had it been available in 1978, might reasonably have affected the jury's decision to convict.

We have had fully in mind the matters expressed by Judge LJ in Guney referring to an earlier case:

But here we have hard and specific material relating to the individual officers concerned, especially, of course, DC Hornby. Nor have we forgotten what Maurice Kay LJ said in Deans at paragraph 37 which we have cited. That shows undoubtedly that these matters must be looked at case by case: a point greatly urged by Mr Raggatt. Deans was, however, a very different case on the facts. There the officers in question had been guilty of discreditable conduct by taking what may be called "backhanders". Here, Hornby's misconduct was calculated to lead to false convictions by the very invention of untruthful evidence.

The fact is our law has increasingly regarded the value of due process as integral to the doing of justice and the conduct of police officers is integral to due process in the administration of the criminal law.

For all the reasons we have given we are driven to conclude that these convictions are unsafe and the appeals will accordingly be allowed.

LORD JUSTICE LAWS: Are there any consequential matters?

MR TURNER: Thank you, my Lord, for asking, but no.