On 12 June 1978 Martin Patrick Foran faced trial before HHJ Ross QC at Birmingham Crown Court upon an indictment charging him with six offences. In count 1 he was charged with burglary of a garage at 29 St Chad’s Road, Rubery between 1 and 4 May 1977 and theft of a wallet and its contents. In the alternative, in count 2 he was charged with handling the wallet and contents. In count 3 he was charged that on 26 September 1977 he robbed Charles Apechis of £2,800 in cash and other property. In count 4 he was charged that on 8 October 1977 he robbed Natwarlal Trikain of a handbag and £35. In count 5 he was charged that on 13 October 1977 he robbed Richard Alexander Rice of a quantity of jewellery and watches, a cash box and cash. In count 6 he was charged that on 13 October 1977 he robbed Ian Lawrence Holmes of a watch, a wallet and its contents. In counts 3 - 6 Mr Foran was jointly charged with Errol Alexander Campbell. Campbell pleaded guilty to those counts and trial proceeded against Mr Foran alone.

During the course of the trial the judge withdrew count 1 from the jury and directed an acquittal. On 21 June 1978 the jury returned verdicts of not guilty upon count 2 and guilty upon counts 3 – 6 inclusive. Mr Foran was sentenced to 10 years imprisonment concurrent upon each count.

He appealed against conviction. On 11 March 1980, in a judgment a transcript of which is no longer available, the full court refused the applicant’s renewed application for leave to appeal. In 1981 an effort was made to persuade the Home Secretary to refer the convictions back to the Court of Appeal. That effort was unsuccessful. In July 1982 Mr Foran conducted a roof top protest at HMP Nottingham. His case was raised in the House of Commons on 20 July 1982. The minister of state at the Home Office, Mr Patrick Mayhew QC, who had a copy of the court’s judgment in his possession, reminded the House that he could not usurp the functions of the jury and the Court of Appeal. There was no new evidence that cast doubt upon the safety of the verdicts which, as Donaldson LJ had remarked in his judgment on behalf of the court, depended upon confessions by Mr Foran to the offences alleged.

On 7 January 2013 Mr Foran made an application to the Criminal Cases Review Commission (“the Commission” or “the CCRC”) for a review of his case. On 9 January 2014 the Commission referred the convictions to this court under section 9 of the Criminal Appeal Act 1995. Henceforth we shall refer to Mr Foran as the appellant. The grounds for referral which we paraphrase are that further information has come to light that casts down upon the prosecution case proved by police officers that the appellant had confessed to the count 3 – 6 offences; accordingly, that the verdicts were unsafe.

On 16 April 2013 this court (Leveson LJ, Mitting and Males JJ) allowed the appellant’s appeal against a quite separate conviction at Birmingham Crown Court on 3 May 1985 on the ground that police evidence was tainted (Foran [2013] EWCA Crim 437). However, the evidence under scrutiny in that case concerned an offence which took place in September 1984 and concerned police officers none of whom were involved in the investigation which is the subject of the present appeal.

On 12 April 1977 the appellant and his wife were arrested in a jeweller’s shop on suspicion that they were attempting to sell stolen property. They were later released without charge. A dispute arose as to the whereabouts of the jewellery in the appellant’s possession. The appellant claimed that the police had seized and not returned the jewellery. The police account was that the appellant must have discarded the jewellery after his arrest and before arriving at the police station. Shortly afterwards, acting on information provided by the appellant, the police carried out a surveillance operation in anticipation of a wages robbery. No such robbery occurred. Later, at his trial, the appellant maintained that he had given false information to the police as a hoax in retaliation for his lost jewellery. On 3 May officers attended the appellant’s home looking for stolen property. They found a wallet and other documents belonging to Mr Farmer the owner of the garage the subject of count 1 in the indictment. The appellant was arrested and taken to Digbeth Police Station where he was interviewed under caution. The appellant claimed that his children had handed him the wallet the night before his arrest. The appellant was charged and released on bail to appear at Birmingham Magistrates Court on 14 June 1977. He failed to appear and a warrant for his arrest was issued. This is the background to subsequent events. In circumstances to which we shall return the appellant was arrested on 24 October 1977.

In the meantime the robberies the subject of the indictment took place. As to count 3, on 26 September at 4.00 am four men, three of whom were black and of West Indian origin, and the fourth of whom was white, broke into the home of Charles Apechis carrying knives. They robbed Mr Apechis of £2,800 in cash and a quantity of half sovereigns. As to count 4, on 8 October two men, one West Indian and the other white, broke into the home of Natwarlal Trikain and his wife. They entered the couple’s bedroom carrying metal bars. The black man took money out of a handbag and left the room. Taking advantage of the momentary distraction, Mr Trikain grabbed the metal bar in the white man’s hand. There was a struggle; then both intruders then made their escape. As to counts 5 and 6, the loser in count 5, Richard Rice, owned a jewellers shop in Sparkbrook. Mr Holmes, the loser in count 6 visited Mr Rice shortly before closing time on 13 October. Two black men entered the shop followed by a white man brandishing a sword. He was followed by two more black men. The sword was used to sever the telephone connection to the shop while the contents of two safes were emptied into a black bin bag. Cash was also removed from the till. Mr Holmes was robbed of his wallet. Mrs Rice and her daughter, Karen, interrupted the robbery when they arrived at the front door of the shop which had by this time been locked. As a result the robbers lost their nerve and ran off leaving the bin bag behind them.

On 21 October Detective Sergeant Whelan, stationed at Sparkbrook Police Station, showed Karen Price a number of photographs. She identified a photograph of the appellant as the white man at the robbery of her father’s shop. The jury knew of the identification but were instructed that the only admissible evidence of identification came from Mr Holmes (see para. 9 below). On 24 October the appellant was spotted by Detective Constable Davies, a member of the West Midlands Police Serious Crime Squad, driving a car in which a woman was the front seat passenger. Knowing that the appellant was wanted by the police he called for assistance and stopped the car. He arrested the appellant and took him to Acocks Green Police Station. On 26 October while he was in custody the appellant was examined by Dr Tubb. Dr Tubb found 15 bruises on the appellant’s body clustered around the front left shoulder and chest, the left upper arm, the abdomen, the right thigh and the left thigh. Their possible age was between two and four days. They were not, in Dr Tubb’s opinion, the result of a mere fall because they were too widespread. Some of the marks were linear, suggesting contact with a straight, blunt object. Others were caused by contact with a larger blunt object. If the marks were caused by objects impacting on the body, the force had been considerable. The evidence of the arresting officer, Detective Constable Davies, was that the injuries must have been caused during the fight between himself and the appellant when the appellant resisted arrest. According to Detective Constable Davies punches were thrown and a violent struggle took place while the appellant was both inside and outside the car from which he was removed. Once the appellant was outside the car an officer who arrived in support saw that the appellant and Detective Constable Davies were still grappling with one another but he was unable to say what had occurred in the earlier stages. The appellant’s passenger was not called to give evidence; the appellant said he could trace the witness. Detective Constable Davies suggested that the linear marks found on the appellant’s body may have been caused by impact with the steering wheel of the appellant’s car. There were other possibilities. The appellant’s evidence was that there was no fight at the time of arrest. He maintained that later, at the police station, he was beaten up by officers frustrated that he would make no admission.

The prosecution had no evidence with which to identify the appellant as being a person present at the robberies the subject of counts 3 and 4. As to counts 5 and 6, there was an identification of the appellant made by Mr Holmes at an identification parade held on 9 November 1977. However, on the same day, Mr Rice picked out a volunteer, while Mrs Rice and Karen picked out a different volunteer.

One of the grounds of appeal to the Court of Appeal on which the appellant relied in 1980 was that Mr Apechis (count 3) had since been shown a photograph of the appellant and positively excluded him as the white man who robbed him. The appellant also sought to challenge his conviction of the robbery at Mr Rice’s shop (counts 5 and 6) by relying on the prosecution’s failure to disclose at trial that the sword allegedly wielded by the appellant contained a single partial fingerprint that could not have been left by him. Part of the judgment of Donaldson LJ refusing the renewed application for leave was read to the House of Commons on 20 July 1982. It contained the following passage:

The prosecution case was that the appellant was first interviewed at 5.35 pm on 24 October. Detective Inspector Curry, Detective Sergeant Hancocks and Detective Constable Davies were in the interview room. The appellant made no explicit denial but made no admission either. Detective Inspector Curry and Detective Constable Davies left the interview room, leaving the appellant alone with Detective Sergeant Hancocks. Detective Sergeant Hancocks gave evidence that he encouraged the appellant to respond directly to the accusation that he had participated in the robbery at Rice’s shop. He suggested that the appellant must remember whether he had done the robbery or not. Detective Sergeant Hancocks, in response to the appellant’s questions, told him that he would probably be asked to attend an identification parade because there were four witnesses. At 6.30 pm on 24 October the appellant was again interviewed by Detective Inspector Curry and Detective Constable Davies. He again made no admissions, saying that daylight robberies were not his style.

Those officers left the interview room at 6.55 pm and for a second time the appellant was left alone with Detective Sergeant Hancocks. During their conversation, according to Detective Sergeant Hancocks, the appellant said that he would say nothing about the robbery until he could trust him. He asked for time to think and the officer left the room. At 7.15 pm Detective Sergeant Hancocks returned with Detective Chief Inspector Taylor, recently appointed head of the West Midlands Police Serious Crime Squad. The officers gave evidence that they summarised their information as to the robbery at Rice Jewellers and accused the appellant of being the white man to whom the witnesses had referred. According to them the appellant said he wanted to talk alone with Detective Sergeant Hancocks because he did not know Detective Chief Inspector Taylor.

Detective Chief Inspector Taylor left the room. Detective Sergeant Hancocks said in evidence that the appellant started to bargain with him. He was prepared to give information about the robbery together with other crimes, including offences committed in Ireland. The officer replied that he could not make bargains but the appellant proceeded to give him information anyway. It was the defence case that Detective Sergeant Hancocks was lying. The officer’s response was to produce the handwritten note there and then made to jot down the information with which the appellant provided him. Detective Sergeant Hancock’s note, a copy of which we have seen, contains references to criminal associates meeting in the Vine Public House. The appellant called them “coons”. They committed robberies. One of them was a man named Errol. The description given matched the appellant’s co-accused Errol Campbell but the appellant did not identify Campbell as one of the robbers at Rice Jewellers. The appellant told Detective Sergeant Hancocks he would be able to recognise the robbers from photographs. He gave information about other crimes including events in Northern Ireland. The exhibit contained two A4 pages of handwriting that bear the appearance of notes spontaneously recorded and supplemented as the information emerged.

Detective Sergeant Hancocks said that having recorded this information he brought the appellant back to the Rice Jeweller’s robbery. The appellant replied, “Well it was me and the four west Indians. What a cock-up it was”. He told Detective Sergeant Hancocks how he had been recruited by the West Indians but denied that he had ever had the sword in his hand. He claimed that it had been carried by one of the black men who entered the shop after him. He told the officers that he had got “fuck all” from the robbery because it had been “a cock-up”. The appellant was asked whether he wanted to make a statement. He said that first the officer should check the information he had been given.

Detective Sergeant Hancocks left the room and at 8.15 pm returned with Detective Chief Inspector Taylor. In the appellant’s presence Detective Sergeant Hancocks gave Detective Chief Inspector Taylor an account of what had occurred. Detective Chief Inspector Taylor asked the appellant if Detective Sergeant Hancocks’ account was correct. The appellant replied that it was but he continued to insist that he had not carried the sword. He told the officers that he did not know the names of the other robbers (despite having referred to Errol earlier) but he could provide details and would do so only if the charge against him was dropped. The appellant was told that he had been identified by one of the witnesses from photographs. The officers could make no promises to him. Shortly after the interview the officers together made their notes of the appellant’s account of the robberies and his admission. That account was consistent with the statements of the witnesses. The appellant told the officers “I’ll give you them (i.e. the West Indians) if you drop the charges against me”. Detective Chief Inspector Taylor asked the appellant if he would make a statement. He replied that he would do it “tomorrow”.

Detective Sergeant Whelan, the officer who had shown the photographs to Karen Rice, gave evidence that at some point later that evening he had visited the appellant in custody at the police station. He had with him Detective Constable Bawden who was also stationed at Sparkbrook. Neither officer was a member of the Serious Crime Squad. Since Detective Sergeant Whelan was the officer in charge of the case in Sparkbrook he needed to see the appellant. Detective Sergeant Whelan informed the appellant that he had been told by Detective Sergeant Hancocks that he had admitted the Rice Jewellers robbery earlier that evening. According to Detective Sergeant Whelan and Detective Constable Bawden the appellant confirmed the truth of the statement. However, on the following day, 25 October, the appellant declined to make a written statement. On 22 December he was committed for trial and remanded to HMP Leicester. On 13 March 1978 Errol Campbell was arrested. He admitted his participation in the robberies charged in all four counts and in the course of his written statement implicated the appellant as the white man. The jury was informed of the statement but were directed that it was only admissible in the case of Campbell. Armed with this statement Detective Constable Davies and Detective Sergeant Jennings, both members of the Serious Crime Squad, travelled to Leicester to interview the appellant. They gave evidence that the appellant admitted his involvement and together they completed their notes of the conversation in a car outside the prison.

There was a dispute as to whether the appellant was willing to see the officers at all. A prison officer, Mr Law, gave evidence in the defence case. The prosecution produced a letter from the Chief Constable of the West Midlands Police to the governor of the prison confirming an arrangement for the visit. Also produced was a consent form signed by the appellant in which his rights as a prisoner in custody were set out. Mr Law gave evidence that the document was signed by the appellant either immediately outside or inside the interview room. The officers maintained that Mr Law entered the interview room and was present when the document was signed by the appellant. Mr Law agreed that when the appellant signed the document he must have known the identity of the officers who were to interview him: the appellant was either in the room with them or could see them through the glass door. According to the officers they first asked the appellant whether he recognised the names of some West Indian men. The appellant replied that he did not. The officers informed the appellant that they had in their possession a statement from Errol Campbell who was in custody at Bardesley Green Police Station. The statement was being read aloud to the appellant when the appellant jumped up and walked to the door of the interview room saying “That’s it. I have heard enough”. Detective Constable Davies suggested to the appellant that it was in his own interests to listen to what Campbell had said about him. According to the officers, when informed that Campbell had implicated him in all three robberies, the appellant responded by nodding and said, “OK Johnny [Davies], fair enough but if you hadn’t had locked the coon up I had a fifty-fifty chance of getting away with it”. The officer asked, “Am I to take it Martin, that you are admitting your part in the other offences?” The appellant replied, “Yes, I have got to give it to you, Johnny, you’ve worked hard. You know I am a bit of a con man, but how did you get Campbell? Did somebody put him in?” The appellant was asked whether he wished to make a statement. He replied that he wanted to speak to his solicitor first. He asked the officers to visit his wife in hospital where she had just given birth to their child. He wanted them to tell her that he knew what he was doing.

In cross-examination the officers maintained that at no stage did the appellant ask that Prison Officer Law should be in the interview room. He was present when the appellant signed the consent form and then left of his own volition. Mr Law gave evidence that the appellant was reluctant to be interviewed. Through the glass partition he could see that the appellant had got to his feet on between two and five occasions. However, at no stage did the appellant terminate the interview (as he had been told he could) but, towards the end, Mr Law said that he was asked to enter the room in order to hear the appellant’s denial of a proposition that was put to him. However, Mr Law could not recall what it was that the appellant was denying. Afterwards he left the room of his own volition. Mr Law recalled that as the officers were walking towards the gate while the appellant was being escorted by Mr Law back to his cell, the appellant was repeating to the officers his request for a favour which, it was apparent to him, the appellant had already made in the interview room. Mr Law could not recall what the favour was.

The judge reminded the jury of the appellant’s evidence of this visit. The appellant said he thought he was going to be visited by his wife. We note that it would be difficult to reconcile that belief with an assertion that his wife had just given birth in hospital. The appellant said that he declined to see the officers and asked to be returned to his cell. Detective Constable Davies told him that they had his solicitor’s permission to see him. He thereupon signed the consent form. The appellant said that as soon as he heard his name mentioned in Campbell’s statement he stood up and asked to be returned to his cell. As we have said, that assertion was not supported by Prison Officer Law. The officer suggested that it was in the appellant’s interest to listen. Detective Sergeant Jennings said that he wished to speak to the appellant alone and Detective Constable Davies left the room with Mr Law. That assertion is also inconsistent with Mr Law’s evidence. The appellant claimed that Detective Sergeant Jennings told him that if he was prepared to admit the Rice Jewellers robbery he would guarantee that his wife would not be arrested on suspicion of offences in Ireland. The appellant said that he made no admission to the officers of any offence. When informed by Jennings that he would go to hospital to charge his wife the appellant requested that he pass on his love to his wife and tell her not to worry.

In his evidence the appellant denied that he was aware that he was on bail to appear at the magistrates’ court in June 1977. He claimed that Detective Constable Davies had let him go on condition that if he acquired information that he was prepared to give to the police about other offences at a later stage the charge of burglary and theft of Mr Farmer’s wallet (count 1) would be dropped. It was the appellant said, police bail pending further enquiries. The prosecution produced exhibit 9, the charge sheet in which, contrary to the appellant’s evidence, he had been charged with the offence. The appellant denied that the reference to bail to the magistrates’ court was in the copy that had been provided to him. The prosecution case was that there were up to six copies of the document. The appellant denied that the signature on the bail form was his own. However, the officer who prepared the document and obtained the appellant’s signature gave evidence that had the appellant not signed his acknowledgement of bail he would not have been released from the police station.

The appellant maintained that there had been no fight when he was arrested by Detective Constable Davies. At the police station he was taken to a cell by Detective Sergeant Hancocks and later retrieved by Detective Constable Davies. In the interview room were Detective Sergeant Hancocks, Detective Inspector Curry, Detective Constable Davies and a fourth, unidentified officer. The appellant said that Davies fetched some paper and told the appellant that he would now have a statement from him about the robbery. When the appellant refused Detective Constable Davies twisted his ears and said, “You are fucking Uncle John about, now make a statement”. When the appellant again refused he was pulled off his chair by his hair and kicked by Detective Inspector Curry and Detective Constable Davies. The appellant said that he would prefer to talk to Curry than to him. Davies fetched a truncheon and rammed it into his stomach. Hancocks and another officer held up the appellant’s legs while Curry kicked him. The appellant said that despite this beating he had never made admissions and he had not given Detective Sergeant Hancocks any information. The note made by the officer was a fabrication. The appellant accepted, however, that when Detective Sergeant Whelan visited him the Sergeant informed him that he understood the appellant had made earlier admissions to Detective Sergeant Hancocks. According to the appellant, he responded, “You have got to be joking. They beat the hell out of me.”

The appellant agreed that he told the police he could not recall where he was on 13 October. He said that while in custody on remand he worked backwards and recalled that he had an alibi for the time of the robbery. He had been visiting a Mrs Kyle. He recalled using a taxi because his own car was at a garage. Mrs Kyle, he agreed, had visited the appellant in prison several times. Mrs Maisey Hamilton, Mrs Kyle and Mrs Kyle’s daughter gave evidence in support of the alibi. The prosecution did not dispute that the appellant had visited Mrs Kyle. They challenged that the witnesses were honest and/or accurate about the date of the visit. As to the circumstantial detail that the appellant had used a taxi because his own car was at a garage, when asked to name the garage the appellant was unable to do so and was evasive when challenged.

In the course of his summing up Judge Ross QC explained to the jury that the prosecution relied on identification only in the case of the Rice Jewellers robbery in counts 5 and 6. Later, he pointed out that in relation to count 3 the victim’s description of the white intruder bore no resemblance to the appellant. Although Mr Trikain and his wife (count 4) purported to give a general description of their attackers, both of them said that they had covered their faces with articles of clothing. As to Mr Holmes’ identification of the appellant, (counts 5 and 6) the judge gave the jury an incomplete Turnbull direction. He instructed them as to the dangers of identification evidence even by perfectly honest witnesses. He pointed out the factors that the jury would need to examine in order to assess the opportunity that Mr Holmes had to make an accurate identification. They should compare his face to face identification with the description earlier given in a statement. He reminded the jury of the contrary identifications made by Mr and Mrs Rice and their daughter. The judge did not make specific reference to the court’s knowledge of cases of miscarriages of justice occasioned by the identification evidence of perfectly honest witnesses. In his witness statement Mr Holmes described the white man as aged about 40 with moles on his right cheek. The appellant was aged about 30 and did have moles on both cheeks. At the identification parade all those who stood wore brown paper ‘plasters’ on their cheeks. Mr Holmes said that he could tell from his accent that the white man was Irish, as was the appellant. Mr Holmes had described the man as having fair hair. The appellant did not have fair hair. Mr Holmes ascribed his mistake to the fact that the man had been wearing a hat. The judge advised the jury to look for other evidence in support of the identification and informed them that the supporting evidence derived from the appellant’s alleged admissions. The jury would have to resolve the dispute in the evidence as to the circumstances in which the appellant suffered his injuries and the accounts of the admissions made by the appellant to the officers.

The judge reminded the jury of the evidence of Police Constable Flemming, the officer in charge of the desk at Digbeth Police Station on 3 May. He did not claim to remember the appellant personally but he described the process of charge and admission to bail as routine.

The judge reminded the jury that the note of the first interview between Detective Constable Davies, Detective Inspector Curry and Detective Sergeant Hancocks was made jointly by the officers. He invited the jury to consider whether Detective Sergeant Hancocks was telling the truth when he said that when alone with the appellant the appellant appeared more willing to talk to him. The critical conversation occurred when Detective Sergeant Hancocks was alone with the appellant after Detective Chief Inspector Taylor’s first visit with Hancocks to see the appellant at 7.15 pm. The judge reminded the jury of the relevant contents of the note Detective Sergeant Hancocks said he had made in the appellant’s presence as follows (page 36):

The judge reminded the jury that according to Detective Sergeant Hancocks the appellant gave an account of the Rice Jewellers robbery that accorded with the evidence of the witnesses. It was the appellant, Hancocks said, who described the robbery as a cock-up from which he had received no gain. The judge concluded with these words:

The judge summarised the evidence that Detective Chief Inspector Taylor and Detective Sergeant Hancocks returned to the appellant who repeated and expanded on the version already provided to Hancocks, while at the same time attempting to bargain his way out of the charge against himself. The judge concluded:

The judge reminded the jury of the agreed evidence that following the interview on 24 October Detective Chief Inspector Taylor went to fetch the appellant’s wife so that she could visit the appellant in custody, the judge commented upon the evidence as follows:

The judge made plain to the jury that as a matter of common sense counts 5 and 6 must stand or fall together. There was an overlap in the evidence relevant to counts 3 – 6 only in the sense that Detective Sergeant Jennings and Detective Constable Davies asserted that at HMP Leicester on 3 April 1978 the appellant made admissions to all three robberies. However, in the case of counts 3 and 4, there was no evidence independent of the police officers to associate the appellant with those offences.

In the course of her submissions Ms Nicholls relied upon the statement of Charles Apechis absolving the appellant of responsibility for the count 3 burglary and upon the admission by the prosecution that by reason of an oversight the prosecution had failed to disclose the fingerprint evidence relating to the sword recovered from the scene of the robbery in counts 5 and 6. Notwithstanding the refusal of leave by the court in 1982 and the acknowledgement by the CCRC that the evidence was unlikely to assist the appellant in the present appeal, Ms Nicholls submits that these are both factors that this court should consider when examining the safety of the verdicts. In the Commission’s view, and as Ms Nicholls acknowledged, the fingerprint evidence was of marginal assistance to the appellant since the evidence revealed that the sword was handled by more than one person; it follows that at least one person handled the sword but left no recoverable finger impressions.

It is acknowledged on both sides that the evidence that was critical to the convictions related to the admissions allegedly made to police officers.

In August 1989 the West Midlands Police Serious Crime Squad was disbanded. There followed an investigation into its practices by the West Yorkshire Police under the supervision of the Police Complaints Authority. Efforts were made to trace all of those arrested by the Serious Crime Squad during the years between 1986 and 1989. There was revealed a catalogue of malpractice which included physical abuse, the generation of false confessions, the planting of evidence and the mishandling of informants. At least 33 convictions resulting from tainted evidence given by members of the squad have been quashed by this court including some convictions emanating from the work of officers who were or became members of the Serious Crime Squad as early as the mid-1970s, the most notorious of which were the convictions of the Birmingham Six (see McIlkenny and Others [1991] 93 Cr App R 287; see also O’Toole and Murphy [2006] EWCA Crim 951; Wilcox [2010] EWCA Crim 1732; and Dunne and Others [2001] EWCA Crim 169).

Those officers who gave evidence concerning counts 3 – 6 of the present indictment and were members of the Serious Crime Squad in 1977 and 1978 were Detective Chief Inspector Taylor, Detective Sergeant Hancocks, Detective Sergeant Jennings and Detective Constable Davies. Detective Inspector Curry, Detective Sergeant Whelan and Detective Constable Bawden were not members of the Squad.

Membership by police officers of the Serious Crime Squad in the mid-1970s is not an automatic gateway to successful appeals against historic convictions obtained by evidence of confession. In John Edwards [1991] 93 Cr App R 48, the then Lord Chief Justice, Lord Lane, gave guidance to trial judges as to the permissible limits of cross-examination of police witnesses as to credit. Giving the judgment of the court, Lord Lane said, at page 55:

Lord Lane gave consideration to the admissibility of questions concerning acquittals and other cases in which an officer had given evidence that may have been disbelieved. Having examined the authorities he said, at page 59:

The issue that arises in the present appeal is not, as in John Edwards, whether proper disclosure was made to the defence of the result of disciplinary proceedings to which an officer had been subject but whether, in the light of later events, it is demonstrated that the officers’ evidence was unreliable and, accordingly, that the verdicts are unsafe. That would involve a consideration by the court of the particular facts of the appeal before them, including the nature of the information available to the court as to the discredit of witnesses who gave evidence in the original trial. Ms Nicholls, in the course of her submissions disclaimed any attempt in this appeal to establish guilt by association. That which concerns this court, she accepted, is whether there is material, subsequently gathered, that taints the credit of the witness to such an extent that the safety of the verdicts is placed in doubt. That issue may be tested, and has been tested in similar appeals, by considering whether, had the material been available at the time of trial, cross examination upon it would have been permitted and, if so, whether that cross examination may have had the effect of casting doubt upon the reliability of the witness and thus the safety of the verdict. However, evidence may be tainted by subsequent events although no specific findings of corruption or perjury have been made against an officer concerned.

In Maxine Edwards [1996] 2 Cr App R 345 the appellant had been arrested by Detective Constable Gillan and Police Constable Carroll on suspicion of being in possession of crack cocaine. At her trial she asserted that the officers were lying when they claimed that the drug was in her hands. It had been recovered from the back seat of her co-accused’s car next to which she had been standing at the time of her arrest. They were also lying when they claimed she had made compromising remarks to the officers when she was being conveyed to the police station. Ms Edwards was convicted of possession of a class A drug with intent to supply, her appeal was dismissed and she was deported. Subsequently, her case was referred back to the Court of Appeal by the Home Secretary, using his powers under section 17 of the Criminal Appeal Act 1968. The arresting officers had been members of the Stoke Newington drug squad which in intervening years had been the subject of an investigation, Operation Jackpot, and severe criticism of the integrity of the squad. Several convictions that had depended upon similar evidence had been overturned on appeal, some with the agreement of the prosecution. It was argued by the respondent in the appeal of Ms Edwards, however, that, since the investigation had exposed no explicit wrongdoing by the officers who arrested her, the appeal should be dismissed. Beldam LJ, giving the judgment of the court, said at page 350:

This was an issue again examined by the Court of Appeal in Crook [2003] EWCA Crim 1272 (Judge LJ, Andrew Smith J and HHJ Richard Brown). The target of the appeal was the reliability of evidence given at trial by Detective Constable Geaghan. The squad in which he served had been the subject of investigation. As a result 25 officers were charged with offences or suspended from duty. Detective Constable Geaghan was not one of them. Nonetheless it was argued that he was covered by the “general taint” of evidence of the squad’s activities. Judge LJ, delivering the judgment of the court said, at paragraph 21, that taint may properly be attributed to those found guilty of misconduct and those who turned a blind eye to the misconduct of other officers of which they were aware. The same considerations did not apply to officers of whom it was not established that they either participated in misconduct or, being aware of it, said nothing. Nothing had been produced that could have been put to Detective Constable Geaghan in cross examination and his participation in the investigation was, in any event, limited. There was material that could have been put to another officer, Detective Inspector Brown, but his involvement in the investigation had also been extremely limited and he had not given evidence at the trial. In the result, the court saw no basis on which to find that the safety of the conviction was undermined.

Each case must be decided upon the court’s assessment of its particular facts. We shall turn to examine the material on which the appellant now relies to undermine the safety of his conviction.

Detective Constable Davies was central to the investigation of the appellant although he was not present on 24 October when any alleged admission was made. He arrested the appellant for the theft of Mr Farmer’s wallet. He arrested him again on 24 October 1977. He interviewed the appellant following his arrest and again after charge at HMP Leicester. Detective Constable Davies, according to the appellant, took the lead when officers adopted a threatening manner towards the appellant and assaulted him when he refused to make a statement.

The appellant relies upon the accepted fact that Detective Sergeant Hornby and Detective Constable Davies both served in the Serious Crime Squad, subsequently the subject of close scrutiny and criticism. It is common ground that the reliability of Detective Sergeant Hornby as a witness has been severely compromised by decisions of the court in several subsequent appeals. It is unnecessary to repeat the details here. Nonetheless, in none of those appeals has Detective Constable Davies featured either as a participant or as a witness. There are undoubtedly occasions between 1974 and 1978 when Hornby and Davies would have been working together but, with one possible exception with which we deal below, we are not persuaded that there has been any explicit or implied finding adverse to Detective Constable Davies concerning any of those occasions.

The appellant relies specifically upon the involvement of Detective Constable Davies with Detective Sergeant Hornby in the investigation which led to the arrest and prosecution of the Birmingham Six in November 1974. There were appeals against conviction in 1987 and 1991. In 1991 the convictions of the six men were quashed. The Court of Appeal held that two issues, considered separately, would lead to the conclusion that the convictions were unsafe. The first concerned the reliability of chemical tests performed during the investigation for the purpose of connecting explosive material to the defendants. The second concerned the police evidence as to the making of contemporaneous notes of interview. During the appeal evidence of electrostatic document analysis (ESDA) was introduced as a means of testing the accuracy of interview records in which Richard McIlkenny reportedly made a confession. The analysis showed that the records were not contemporaneous as the interviewing officers had stated when giving their evidence at trial but were composed, at least in significant part, after the event. In 1991 the Court of Appeal found that the four officers who had contended otherwise in evidence had misled the court.

There also featured in the appeals in both 1987 and 1991 a document that became known as “the Reade Schedule”. It had seven columns headed by Superintendent Reade respectively, “Date”, “Time”, “Officers”, “Prisoners”, “Place”, “Reference”, and “Knowledge of”. Entries covered the period 3.15 am on 22 November to 3.15 pm on 24 November and many of them were alterations and corrections of earlier entries. When asked in 1987 what was the purpose of the document Superintendent Reade said, after giving conflicting accounts, that he could not remember. At [1991] 93 Cr App R at page 309, in his judgment given on behalf of the court, Lloyd LJ observed that it was probable that the schedule was not a running record of the interview of suspects but a record prepared shortly after the interviewing had been completed. It was argued by counsel for the appellants that the purpose of the schedule must have been to nominate, after the event, in which interview, with which officers a suspect had made admissions. At 3.05 pm on Saturday, November 23 the appellant Hugh Callaghan was interviewed. In the column headed “Officers”, Superintendent Reade had written, “DS Hornby and crew”. Detective Constable Davies was a member of Detective Sergeant Hornby’s crew. On the last page of the schedule was written “Davies and Bryant will be OK”. Other entries in the schedule caused the Court of Appeal in 1991 serious misgivings. However, in the first appeal in 1987 the court had heard Superintendent Reade give evidence and rejected the appellants’ contention that the schedule was a “blueprint for perjury”. In 1991 the court concluded, at page 310:

Detective Constable Davies did not give evidence in the trial of the Birmingham Six or in the appeals. We do not know the reason. At the time of the hearing in the present appeal it was not known whether Detective Constable Davies had made a witness statement. We have since been provided with a typed but unsigned and undated copy of Detective Constable Davies’ witness statement, which appears from its pagination to have formed part of a file of evidence. He was never asked to account for the interview with Callaghan and the court in 1991 made no explicit findings in respect of it. The court’s conclusions were, at page 317, as follows:

In his witness statement Detective Sergeant Davies said that at 2.30 pm on Saturday 23 November 1974, he went with Detective Sergeant Hornby and others to Sutton Coalfield police station where they saw Hugh Callaghan. Mr Callaghan almost immediately said that he wished to make a written statement. Hugh Callaghan, said Davies, “then threw his arms around me and sobbed on my shoulder”. Shortly afterwards Detective Sergeant Hornby took down Callaghan’s statement at his dictation. While the statement was taken Callaghan cried continually.

There is no doubt that in 1974 Detective Sergeant Hornby was the leader of a “crew” of which Detective Constable Davies was a member but we are unable to accept that by virtue alone of the entry in Superintendent Reade’s schedule, the Court of Appeal can be taken as having made any finding against Detective Constable Davies, expressly or impliedly. On the other hand, at page 318 of its judgment, the court pointed out the inconsistencies between the confessions of Hugh Callaghan and John Walker. As we have seen, Callaghan accepted that in parts he told the truth while in others he lied for the benefit of the police. He claimed that some of his confession was made up by the police. This, however, was not an issue that was resolved by the court and Callaghan’s allegation does not appear ever to have been put to Davies. The court had concluded that four officers, not those engaged in Callaghan’s interview, had at least deceived the trial in the course of their evidence: Superintendent Reade, Detective Sergeant Morris, Detective Constable Woodwiss and Detective Constable Langford. The court concluded that in consequence the police evidence at trial was so unreliable that the convictions as a whole were unsafe and unsatisfactory.

In the course of argument this court expressed concern at the prospect of making adverse findings about Detective Constable Davies in the absence of such a finding by the Court of Appeal in McIlkenny or in any other case that his evidence had been unreliable or that his participation in an investigation had been in any way suspect. Such a finding would indeed amount to guilt by association. However, Mr Rees QC, on behalf of the respondent, drew our attention to the decision of the court in the appellant’s earlier appeal. On 3 May 1985 the appellant had been convicted of robbery and conspiracy to rob. One of the witnesses who gave evidence of an alleged confession was Detective Inspector Paul Matthews. The appellant relied on further material that had become available since his earlier appeals. First was the background evidence as to the misconduct of the West Midlands Police Serious Crime Squad. Second was Detective Inspector Matthews’ involvement in the cases of McIlkenny (above) and O’Toole and Murphy [2006] EWCA Crim 2123. In the investigation of McIlkenny Detective Constable Matthews, as he then was, interviewed the appellant Richard Hill. He gave evidence that Hill implicated two other accused, Murray and Sheehan. Just as, in the case of Hugh Callaghan’s interview, the court did not single out any officer for specific criticism but made the generic finding that the fresh investigation carried out by the Devon and Cornwall Constabulary, and in particular the ESDA evidence, rendered the police evidence and therefore the convictions unsafe. However, Detective Sergeant Matthews, as he then was, also gave evidence in the trial of O’Toole and Murphy whose subsequent convictions were quashed (Laws LJ, Collins and Silber JJ). It emerged in the appeal of O’Toole and Murphy that Matthews had in September 1986 been made the subject of an adjudication for disobedience to orders and neglect of duty. He was required to resign from the force. Furthermore, in November 1985 a jury disbelieved the evidence of the officer in the trial of Herring and Fitzgerald. These were both matters that had been raised in an earlier appeal mounted by O’Toole & Murphy. However, in the appeal of Foran LJ Leveson, giving the judgment of the court, pointed out (reflecting the views of Lord Lane in John Edwards, para. 34 above) that notwithstanding the absence of specific findings against Matthews subsequent to the earlier appeals of O’Toole & Murphy there was no hard and fast rule as to the ambit of legitimate cross-examination going to the credit of the officer. At paragraph 33 of his judgment LJ Leveson, speaking of the judgment of the court in O’Toole and Murphy, said:

With respect to Mr Rees’s argument, we see a stark distinction to be made between the positions of Detective Inspector Matthews and Detective Constable Davies. It may be that if there was in the present case hard or even inferential evidence of misconduct to the witness’ discredit in other cases, or of his suspected participation in corrupt practices with witnesses or defendants, cross-examination as to his involvement in the interviews of Hugh Callaghan would have been permissible. In the present case, however, not only is there no evidence to Detective Constable Davies’ discredit in other cases but he did not give evidence in the trial of McIllkenny and Others. In the absence of an adverse finding by the Court of Appeal, the basis for putative cross-examination in Mr Foran’s trial would have been flimsy and inconclusive. All that exists is a suspicious entry in the Reade Schedule that, at best, is likely to have been double hearsay for which there may be a perfectly innocent explanation. Had there been evidence that, as in the case of Detective Inspector Matthews, Davies was implicated in any way in the corrupt practices of the Serious Crime Squad in the 1980s, this court would be able to take a different view. In the absence of such evidence we are un-persuaded that we should approach the position of Detective Constable Davies in the present appeal as though he were in the same position as Detective Inspector Matthews in Mr Foran’s successful appeal against his 1985 conviction. We conclude that the assertions made as to Detective Constable Davies’ credibility amount on examination to no more than unsubstantiated speculation within the third category of witnesses described by Judge LJ, as he then was, at paragraph 21 of his judgment in Crook.

We turn to the role of Detective Chief Inspector Taylor. Mr Taylor was an important witness since the prosecution asserted that, on two occasions, he was consulted by Detective Sergeant Hancocks and then accompanied Detective Sergeant Hancocks to interview the appellant. He confirmed Detective Sergeant Hancocks’ evidence that during the last interview between them on 24 October the appellant was admitting the robbery at Rice Jewellers. Detective Sergeant Jennings interviewed the appellant with Detective Constable Davies at HMP Leicester on 3 April 1978.

The material on which the appellant relies concerns the police investigation into Keith Twitchell’s alleged participation in a robbery and manslaughter that took place on 13 November 1980, three years after the investigation in the present case. After Mr Twitchell’s unsuccessful appeal against conviction in 1983, the CCRC referred the matter back to the court in 1998. In Twitchell [2000] 1 Cr App R 373 (Rose LJ, Vice President, Jowitt and Hooper JJ), the appeal was allowed and his convictions were quashed. Keith Twitchell was arrested at 11.55 am on the morning of the robbery in which the victim was shot dead. A stolen Ford Escort had been used to facilitate the robbery of a Securicor van. The police evidence was that recovered from the defendant’s girlfriend’s home was his cloth cap on which was found, on examination by a forensic scientist, a single fibre that matched the carpet in the stolen Ford Escort. A stolen Daimler was also used in the robbery to facilitate escape. The police gave evidence that Twitchell was seen in the car after the robbery, that tools from the stolen Daimler were found in Twitchell’s motorcar and that toys and a tool box from the Daimler had been found in Twitchell’s lock-up garage. The appellant’s case was that these items had been planted by the police. However, the Court of Appeal proceeded on its assessment that the case against the defendant rested primarily on admissions allegedly made in interview.

The defendant was interviewed on 14 November. At first he said he was at home at the time of the robbery. The officers gave evidence that, when they produced the statements of his two co-accused, the defendant began to make admissions. Those officers included Detective Sergeant Hornby, Detective Sergeant Jennings and Detective Constable Brown. Twitchell’s account was that he had made no such admissions. He was stripped so that his clothes could be forensically examined. He was effectively naked. He was told that the officers wanted a statement. When he refused to make a statement the officers screamed at him. He was handcuffed to a chair and a plastic bag was placed over his head. In consequence and in fear he signed a statement written by the officers and, the following day, signed a second statement. He also admitted a robbery in Sheffield of which he was later acquitted in a separate trial. Mr Twitchell did not implicate Detective Sergeant Jennings personally in the physical assault upon him but he was present, he said, during at least part of the fabricated interview when pressure was being placed upon him to make a confession.

Detective Chief Inspector Taylor gave evidence that he was present during the first interview and he could therefore confirm that no assault had been committed by his officers on the defendant. Mr Twitchell’s evidence was that Taylor was not present. Detective Sergeant Brown later became Chief Superintendent. Some years later, in a civil action for damages brought by another convicted but unrelated defendant, Mr Treadaway, against the Chief Constable of the West Midlands Police, Mackinnon J made an explicit finding to a high degree of probability that Mr Treadaway had been assaulted by five officers of the Serious Crime Squad including Detective Sergeant Brown in circumstances not dissimilar to those alleged by Mr Twitchell. As a result Mr Treadaway’s conviction was quashed.

In the appeal of Twitchell the prosecution conceded that evidence of the findings against Detective Sergeant Brown in Treadaway were admissible as also were two disciplinary findings of March 1982 against Detective Chief Inspector Taylor, one for neglect of duty concerning payments to an informant and another for falsehood, the nature of which was unspecified. Other material going to credit was available in respect of other officers (but not Jennings). The respondent conceded that had this material been available to counsel to cross-examine the officers at trial the effect upon the jury’s consideration of the evidence of confession was likely to have been “devastating”. Accordingly, the Court of Appeal allowed Mr Twitchell’s appeal against conviction. It is argued by Ms Nicholls that this material would have been admissible in the cross-examination of Detective Chief Inspector Taylor and Detective Sergeant Jennings. Mr Rees QC responded that there had been no explicit finding in Twitchell against either man. The Court of Appeal had allowed the appeal not because the allegations made by the appellant against Taylor and Jennings were established (Rose LJ, Vice President, stated at page 385 that the court made no findings against any individual officers) but because the material available would have been used to effect in cross examination before the jury.

It is accepted by the Commission that there is no direct evidence of malpractice against Detective Constable Davies, Detective Sergeant Hancocks, Detective Constable Bawden and Detective Sergeant Whelan, all of whom gave pivotal evidence in the trial of the appellant in 1978. However, it is submitted that there was implied in the judgment of the Court of Appeal in McIlkenny in 1991 a finding that the investigating team, including Detective Constable Davies, was corrupt or, if not corrupt, at least tainted to a degree that puts the credibility of Detective Constable Davies’ evidence on oath in serious doubt. We have already expressed our reasons for rejecting this argument. While we accept that the taint of institutional corruption may affect the credit of an individual witness against whom no specific finding has been made, we note that this was an investigation in 1977 and that on no occasion since has Detective Constable Davies been implicated in corrupt practice. It is argued that the subsequent disciplinary findings against Detective Chief Inspector Taylor are important because, had they preceded the appellant’s trial, they would have provided ammunition for cross-examination as to credit. He was also tainted subsequently by his involvement in the trial of Twitchell and thus susceptible to accusations of corruption in his dealings with suspects. In 1977 Detective Chief Inspector Taylor was the recently appointed head of the Serious Crime Squad. His leadership role would, it is submitted, have had a significant impact upon the team whom he was directing and, therefore, the truth of the evidence that the appellant made the disputed admissions on 24 October 1977 and on 3 April 1978. He was, in particular, Detective Sergeant Hancocks’ senior officer. Detective Sergeant Jennings was, it is further submitted, implicated in the allegedly false evidence given at the trial of Keith Twitchell, and the taint on his credibility affects the value of his evidence that the appellant made admissions on 3 April 1978.

The respondent, having considered the material available, concedes that this court could properly conclude that the verdicts upon counts 3 and 4 are unsafe. There is a sufficient taint upon the credibility of Detective Constable Davies to cast doubt upon the accuracy of his evidence. There was upon the relevant issues evidence supportive of the appellant from Prison Officer Law. There was no direct or circumstantial evidence to place the appellant at either of the robberies; therefore, there was no supporting evidence from any other source. Charles Apechis (count 3) gave a description of his attacker that bore no resemblance to the appellant and subsequently, not having been called at trial, made a statement absolving the appellant. We accept Mr Rees QC’s submission that no specific findings were made against Detective Chief Inspector Taylor and Detective Sergeant Jennings in the appeal of Twitchell. The ground upon which the court allowed the appeal was that had the material been available for cross-examination the effect would have been devastating. We have posed the question: why would cross-examination have been devastating? In our judgment, the material available for cross-examination of Detective Chief Inspector Taylor and Detective Sergeant Brown in Twitchell was so damaging to the credibility of those officers that there was serious doubt whether the jury would have been prepared to accept them as witnesses of truth. That being the case, Detective Sergeant Jennings’ own evidence would have suffered the same taint since he was supporting the thrust of their evidence. We consider that, in the absence of any other admissible evidence implicating the appellant in the robberies charged in counts 3 and 4, any legitimate attack upon the credit of either Detective Constable Davies or Detective Sergeant Jennings would affect the safety of the verdicts upon those counts. The fact that we have found that there was nothing in the background or later events to cast doubt on the honesty of Detective Constable Davies does not determine the question whether the verdicts on these counts were unsafe. We recognise that our reasoning differs from that of the respondent. In our judgment, it is enough that there is material on which Detective Sergeant Jennings could legitimately have been cross-examined to effect. We have no way of knowing how that would have affected the jury’s decision upon the reliability of the confession allegedly made at HMP Leicester on 3 April 1978 but we are clear that the challenge would have cast renewed light on its reliability. We are persuaded that we cannot be sure that the verdicts on those counts are safe. We consider a further route to the same conclusion in the following paragraphs.

We turn to counts 5 and 6. While, some three to four years later, Detective Chief Inspector Taylor was accused and convicted of disciplinary offences which went to his honesty and therefore affected the fairness of the trial of Mr Twitchell in 1982, there is no evidence of malpractice by him before the investigation of Mr Twitchell’s case in November 1980, fully three years after the investigation in the appellant’s case. However, the appeals of OToole, Murphy and Wilcox all concerned the investigation of robbery by the Serious Crime Squad in 1977 and in Twitchell the allegation was that Detective Chief Inspector Taylor had falsely placed himself in an interview in order to give dishonest support to the evidence of other officers.

Detective Sergeant Hancocks, admittedly an untainted witness, was able to produce a document at trial that has the hallmarks of contemporaneity and was consistent with the evidence of the progression of the critical interview leading, as he said, to the appellant’s admissions. It was inconsistent with the appellant’s complete denial that he had given any information to the officer about robberies or Ireland. In our judgment, this document must have been central to the jury’s consideration of counts 5 and 6. On the other hand, the legitimate point was made by Ms Nicholls in argument that no contemporaneous note of admissions from the appellant to the Rice Jewellery robbery was made by Mr Hancocks even though, according to the officer, he immediately went on to make them. Furthermore, it did not follow that because the jury accepted the handwritten note as genuine they were bound to accept the critical evidence of admissions. There was open to the jury the conclusion that the appellant did attempt to strike a bargain by giving information about others but may not have made any admission of his own guilt. The evidence of Detective Sergeant Whelan and Detective Constable Bawden, also untainted witnesses who did not serve in the Serious Crime Squad, provided, as we have said, significant support for Detective Sergeant Hancocks’ evidence, since Whelan was hardly going to ask for confirmation from the appellant that he had made admissions unless Hancocks had told him that he had. That, however, does not resolve the question whether the admissions had in fact been made to Detective Sergeant Hancocks before Detective Sergeant Whelan arrived at the police station. If by reason of an attack on the credibility of Detective Chief Inspector Taylor the jury had doubts about the truthfulness of the evidence of Detective Sergeant Hancocks it seems to us that a ripple effect would inevitably follow.

The question we have to resolve is whether the specific material available for cross examination of Detective Chief Inspector Taylor and the general taint upon the leadership of the Serious Crime Squad in 1977 is sufficient to place the confession evidence in doubt. We consider that cross examination of Detective Chief Inspector Taylor would have had some impact upon the issue facing the jury. That fact was bound to place the evidence of officers of the Serious Crime Squad under pressure, particularly the evidence of Detective Sergeant Hancocks and Detective Constable Davies. Although we readily accept that it is not possible to assess with any certainty what the outcome would have been, we are clear that the jury would not have approached the evidence in categories each one hermetically sealed from the next. Cross-examination of the head of the Serious Crime Squad as to the honesty and reliability of the investigation may well have had the effect of causing the jury to examine with increased scepticism the issue as to how the injuries to the appellant had been caused. It may also have had an effect on the jury’s assessment of the truth and accuracy of the appellant’s alibi evidence. Once the jury were faced by this means with a further challenge to the accuracy and truthfulness of Detective Constable Davies’ evidence, there would have been a further ripple effect on their examination of his evidence in support of the confession allegedly made on 3 April 1978, and the evidence of Detective Sergeant Whelan and Detective Constable Bawden supporting the alleged confession of 24 October 1977. While we are quite unable to make findings adverse to the credibility of any officer, we cannot be sure, for the reasons we have stated, that a verdict based upon on these alleged confessions is a safe verdict.

Finally, there was in the case of counts 5 and 6 a positive identification of the appellant by Mr Holmes who said, when attending the identification parade, “I am not mistaken, that is the man”. We are conscious of the fact that the full Turnbull direction was not given to the jury but we have read each of the judge’s directions to the jury on the subject of identification and, in our view, the judge safely left the issue to the jury with the warning that they should look for supporting evidence. However, since we have concluded that the identification cannot be regarded as reliably supported by the evidence of confession it follows that the convictions upon counts 5 and 6 are unsafe.

For these reasons the appeal is allowed and we quash the appellant’s convictions upon counts 3 – 6 inclusive.