R v Peter Sullivan

Diane Sindall, aged just 21, was attacked and killed as she was making her way home from work on the night of 1/2 August 1986. On 4 November 1987, after a trial in the Crown Court at Liverpool, before the Honorary Recorder of that city, HHJ Temple QC and a jury, this appellant, Peter Sullivan, was convicted of her murder. He was sentenced to life imprisonment and a minimum term of 16 years was specified. He has remained in custody ever since.

Further evidence has now been obtained by the Criminal Cases Review Commission (“CCRC”). In particular, advances in the methods of DNA analysis have enabled forensic scientists to provide important information about the source of DNA recovered from Ms Sindall’s body. The CCRC have referred the case to this court.

The reference by the CCRC takes effect as an appeal against conviction. At the heart of the appeal is an application by the appellant to adduce fresh evidence relating to DNA analysis, to bite marks and to the reliability of confessions made by the appellant to the police. This court must consider whether to exercise its power, under section 23 of the Criminal Appeal Act 1968, to admit some or all of that evidence. The court must then decide whether the conviction of the appellant remains safe.

Ms Sindall lived in Birkenhead with her fiancé. On the night of her murder she ran out of fuel whilst driving home from her part-time job as a barmaid. She left her vehicle and began to walk along a main road. She was seen by witnesses around midnight. At about 2.30 am the following morning, her car keys were found on the pavement not far from an alleyway. Around lunchtime that day, a woman who was walking her dog found Ms Sindall’s body concealed by vegetation at the end of the alleyway. Later investigation showed that Ms Sindall had been dragged along the alleyway to that location.

Ms Sindall’s body was clothed only in her T-shirt and bra, both of which were hanging loosely around her neck. Her outer clothing, her shoes and her bag were missing but her jewellery had been left untouched.

The medical cause of Ms Sindall’s death was cerebral haemorrhage and fracture of the skull caused by multiple blows to her head. Her injuries included fractures of the jaws, fracture of the thyroid cartilage and facial lacerations and bruising. The nipple of her left breast had been bitten off and the right nipple had been mutilated by biting. There was a jagged laceration of her external genitalia.

The brutal attack which ended Ms Sindall’s young life also blighted the lives of her fiancée, her family and all those who knew and loved her. We offer our condolences to the bereaved.

Traces of semen were recovered from the abdomen of Ms Sindall’s body. The sample had been diluted by rain which had fallen. The scientific techniques available at the time were not sufficient to enable any identification of the man who was the source of the semen.

Fibres, which could have originated from brown polyester trousers, were recovered from Ms Sindall’s body and clothing.

On 2 August 1986, smoke was seen from a fire at Bidston Hill, about 2 miles from the scene of the murder. On the afternoon of 3 August 1986, a Mr Griffiths, who knew the appellant, saw him emerging from bushes on Bidston Hill and running. However, neither Mr Griffiths nor his girlfriend who was with him picked out the appellant at a later identification procedure.

On either 2 or 3 August 1986 walkers on Bidston Hill passed the site of a fire and saw a handbag, the back pocket from a pair of jeans and a bank paying-in slip in the name of Ms Sindall.

On 17 August 1986, police officers found evidence of two fires at Bidston Hill. They recovered items belonging to Ms Sindall. The prosecution case at trial was that the appellant had set a fire on 2 August, using an accelerant, in order to burn Ms Sindall’s clothing; had returned the following day to check; and had then set a second fire.

On 18 August 1986, the appellant was seen by police officers. He was carrying a suitcase and said he was going to London in search of work. He gave a witness statement describing his movements on the day of the murder.

In September 1986 witnesses provided information which caused the police to speak again to the appellant. The appellant’s home was searched. Fibres were recovered which matched those recovered from Ms Sindall’s body, though the expert evidence indicated that only limited significance could be attached to that finding. A crowbar was also found which the appellant admitted had been in his possession around the time of the murder. In the opinion of the pathologist who had conducted the post-mortem examination, Ms Sindall’s injuries could have been caused by that crowbar.

The appellant gave a voluntary interview to the police, initially not under caution, giving an account of his movements which was very different from his earlier witness statement. He denied ever having been to Bidston Hill and said that at the time of the murder he had been at home with his partner. She, however, later told the police otherwise, and made statements, some of which were incriminating of the appellant. When told of this the appellant put forward another different account of his movements. Without naming Mr Griffiths, the interviewing officers read out part of Mr Griffiths’ witness statement. The appellant said that he knew who it was who had seen him, stating that it was Mr Griffiths. He accepted that he had been on Bidston Hill on 3 August 1986, but said that he had gone into the bushes to urinate.

The appellant was then cautioned. He became distressed and denied having killed Ms Sindall. He was arrested. He asked for a solicitor, but access to legal advice was, for a time, refused.

There followed a number of interviews in which the appellant repeatedly changed his account. At different times he made admissions, which included that he had hit Ms Sindall with a brick, that he had hidden her clothing on Bidston Hill, that he had burned her clothing and that he had thrown away a pair of brown trousers. At other times he retracted those admissions.

The appellant was later permitted legal representation. In further interviews with his solicitor present, the appellant again made and then withdrew admissions.

Ten of the appellant’s teeth were missing. Dental impressions were taken of his remaining teeth and compared with the marks on Ms Sindall’s breasts. An oral pathologist, Dr Scott, provided a report in which he provisionally concluded that the injuries to the right breast did not appear to be bite marks, whilst the injuries to the left breast were consistent with being bite marks but it was unlikely that they had been made by the appellant. Dr Scott recommended that the police obtained a further opinion from Dr MacDonald, a forensic odontologist. Dr MacDonald provided a report in which he concluded that the injuries to the left breast were human bite marks made by the appellant and that the injuries to the right breast could also be human bite marks made by the appellant. Having considered that report, Dr Scott agreed with Dr MacDonald’s opinion.

After that expert evidence had been obtained, the appellant was further interviewed in October 1986. He denied having killed Ms Sindall but admitted that he had taken the crowbar out with him on two nights, that he had been drinking on the night of the murder and that he sometimes had blackouts when angry.

The appellant was charged with the murder and was remanded in custody. In November 1986 it was alleged that he had made admissions to a fellow prisoner to the effect that he had enjoyed the murder and had ejaculated.

The appellant and his partner married before the trial. She was therefore not called as a prosecution witness.

At the start of the trial defence counsel made two applications which were refused by the judge: first, that Mr Griffiths should be called to give evidence or that any admissions consequent upon the appellant having been told what Mr Griffiths had said should be excluded; and secondly, that the appellant’s admissions in interview were inadmissible because of police misconduct.

The prosecution contended that there was a sexual aspect to the killing. They presented a circumstantial case against the appellant, which included the following features:

The appellant gave evidence in his own defence. He put forward an alibi for the time of the killing. He denied having had the neighbour’s crowbar in his possession on the night of 1/2 August. He denied going to Bidston Hill that weekend and he said that he had given different accounts to the police because he could not remember his movements. He said he had named Mr Griffiths because he had seen the name on the witness statement which was read to him at interview. He said he had made confessions which were not tape recorded because he had been assaulted and abused by police officers. He denied having spoken to the prisoner who had alleged that the appellant had confessed to him.

At a very late stage of the trial, proceedings were adjourned to enable counsel to consider a disclosure by the prosecution of the fact that an unnamed man had told the police that he had found Ms Sindall’s body at 6.00 am on 2 August 1986, had stolen her clothes and belongings and had taken them to Bidston Hill to burn them. The man concerned had then retracted that admission and the police had eliminated him from their investigation on the basis of the bite mark evidence. This development in the case was ultimately dealt with before the jury by the reading of certain Agreed Facts.

The appellant was convicted and sentenced as we have indicated. Leading counsel who had represented the appellant at trial advised there were no arguable grounds of appeal against conviction.

In 2008 an application was made to the CCRC. The CCRC agreed, exceptionally, to review the case even though there had been no appeal against conviction. They consulted forensic scientists, whose opinion was that there was no real prospect that further testing of the material recovered during the investigation would produce a DNA profile. The CCRC therefore decided not to refer the case to this court. That decision is not challenged on behalf of the appellant today. We observe that, on the basis of the scientific techniques available at the time and the expert opinions obtained by the CCRC, their decision was plainly correct.

In 2019 the appellant applied for an extremely long extension of time (some 32 years) to apply for leave to appeal against his conviction. His grounds, in summary, were that fresh evidence was available which showed the bite mark evidence (as we shall refer to it for shorthand convenience) and the confessions made to the police to be unreliable. Professor Iain Pretty had provided a report saying that there is no scientific basis for the identification and analysis of human bite marks on skin and that the injuries to Ms Sindall could not be identified as human bite marks. Dr Harry Wood, a forensic psychologist, provided a report in which he assessed the appellant as being of low intelligence, highly suggestible and highly compliant. For those reasons, he opined, the admissions which the appellant had made in interview may need to be treated with caution. It was submitted on behalf of the appellant that, if he were being interviewed in 2021, the process would be very different. The interviews would be recorded, and the appellant would have the assistance of a solicitor, and probably also of an appropriate adult, throughout.

The applications were refused by the single judge and, when renewed, refused by the full court. The court found that nothing approaching an adequate explanation had been given for the very long delay in bringing an appeal. Both the single judge and the full court nonetheless went on to consider the merits of the grounds of appeal. In a case in which the bite mark evidence was only one facet of the circumstantial case,

The appellant subsequently made a second application to the CCRC. It was that which resulted in the referring of the case to this court.

The CCRC’s three reasons for referral have been adopted as the grounds of appeal. They relate to new DNA evidence; a further report from Professor Pretty, in relation to the bite mark evidence; and a report from a forensic psychologist, Dr Shepherd, said to cast doubt on the reliability of the confessions made by the appellant to the police.

In relation to the first ground, the CCRC obtained expert evidence from two forensic scientists, Ms Alexander and Mr MacDonald. They indicated that as a result of the recent advances in the techniques of analysing DNA, it is now possible to establish that the semen recovered from Ms Sindall’s body contained the DNA of an unknown man who was neither the appellant nor Ms Sindall’s fiancée.

As to the second ground, Professor Pretty repeats his earlier views and now adds that the British Association of Forensic Odontology no longer endorses the positive identification of suspects by reference to bite marks. Nor does the equivalent body in the United States.

As for the third ground, Professor Shepherd refers to evidence pointing to inherent unreliability of the accounts given by the appellant, to the appellant’s low IQ and to his high level of suggestibility. Professor Shepherd concludes that the appellant was extremely vulnerable in an interview, and that the difficulties which he faced were compounded by breaches of the Code of Conduct which then governed police questioning of suspects.

We have been greatly assisted by the excellent written and oral submissions of counsel on both sides, to all of whom we are grateful.

For the appellant, Mr Pitter KC and Mr Littlehales submit that all of the proposed fresh evidence should be received by the court under section 23 of the 1986 Act. They rely on the three pieces of evidence which we have summarised, both individually and cumulatively. Mr Pitter KC very properly recognises that it is the passage of time and the advances in scientific techniques which have resulted in the position before the court today. He further recognises, helpfully and again properly, that had further testing been undertaken at an earlier stage of the recovered samples from Ms Sindall’s body, it is possible that the testing would have yielded no further information but would have destroyed the remaining sample. As things stand today, however, Mr Pitter KC submits that a simple point is available to him on the new DNA evidence, the power of which lies, he suggests, in its simplicity. He submits that there clearly was a sexual aspect to the murder, with a very strong inference that it was the murderer who deposited the semen recovered from Ms Sindall’s body. The fresh evidence of DNA analysis shows that the semen was deposited by an unknown male and not by the appellant. Given that there is no basis for suggesting the involvement of two men in the murder, it is submitted that this fresh evidence inevitably means that the conviction is unsafe.

Furthermore, it is submitted the fresh DNA evidence also bears upon the evidence now available in relation to the bite mark and in relation to the reliability of confessions made in interview. It is submitted that the bite mark evidence was of central importance to the prosecution case at trial and a jury considering all the evidence now available might very well have reached a different conclusion. The evidence of Dr Shepherd, it is submitted, provides a basis for challenging the admissibility of the evidence of confessions made in interview and, in any event, undermines the reliability of any confession which was held to be admissible.

For the respondent, Mr Atkinson KC and Mr Harris oppose the admission of the suggested fresh evidence in relation to grounds 2 and 3, but do not oppose the admission of the fresh DNA evidence. The respondent engaged a third forensic scientist, Mr Beaumont, to review the evidence of Ms Alexander and Mr MacDonald. Mr Beaumont agreed with their conclusions. Recognising that it is a matter for the court, Mr Atkinson KC does not seek to argue against a conclusion that the DNA evidence renders the conviction unsafe. Further, the respondent indicates that if this appeal against conviction were allowed, no application would be made for a retrial.

We are grateful to the CCRC for the care with which they have considered the application made to them and for their diligence in obtaining the new evidence.

By section 23(1)(c) of the 1968 Act, this Court may, if we think it necessary or expedient in the interests of justice, receive any evidence which was not adduced in the trial. In considering whether to exercise that power, section 23(2) requires the Court to have regard in particular to four matters:

“(a)whether the evidence appears to the Court to be capable of belief;

(b)whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c)whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(d)whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”

We have no doubt that the new evidence of DNA analysis satisfies each of those considerations. The statements of the forensic scientists are plainly capable of belief. They would have been admissible if they had been available at trial, and the reason why they were not before the jury at trial is that they have only recently become available as a result of scientific and technical developments. As to whether this evidence may afford a ground for allowing the appeal, we accept the submissions on behalf of the appellant. The evidence clearly did point to a sexual aspect of the attack on Ms Sindall. The inference that it was her attacker who ejaculated onto her body is very strong. There is no evidence to suggest that more than one man was involved in the murder, and no evidence to suggest that semen may have been deposited in the course of some consensual sexual activity. Strong though the circumstantial evidence against the appellant undoubtedly seemed at the time of his trial, it is now necessary to take into account the new scientific evidence pointing to someone else (“the unknown man”) as the attacker. As Mr Atkinson KC realistically and very fairly accepts on behalf of the respondent, if the new evidence had been available in 1986, the evidence as a whole would have been regarded as insufficient even to charge the appellant.

In those circumstances, we have no doubt that it is both necessary and expedient in the interests of justice to receive the evidence of the forensic scientists relating to the DNA analysis which has so recently become possible. In the light of that evidence it is impossible to regard the appellant’s conviction as safe.

That conclusion is sufficient to determine the outcome of this appeal. We can therefore take grounds 2 and 3 quite shortly. The new evidence of Professor Pretty and of Professor Shepherd satisfies three of the statutory considerations which we have mentioned, but we are not persuaded that the evidence of either witness would of itself afford a ground for allowing the appeal.

The bite mark evidence was thoroughly addressed by the defence at trial. Much of the evidence which Professor Pretty could now give was before this court when considering the first appeal in 2021. We respectfully agree with the reasons then given for concluding that, in isolation, it did not cast doubt on the safety of the conviction. Two further points are now relied upon by the appellant. The first is Professor Pretty’s evidence that bite mark evidence is no longer regarded as a reliable means of positive identification. Secondly, reliance is placed on a contemporaneous newspaper report as showing that the prosecution counsel at trial regarded the bite mark evidence as very important.

We take careful note of Professor Pretty’s first point, but we note that it does not address the issue of the admissibility of bite mark evidence, if it is relied upon as a circumstance forming part of a circumstantial case rather than as definitive identification evidence. In any event, in the context of a case in which the prosecution did rely on many strands of evidence, we take the view that neither of the new points is of such substance as to lead to a conclusion different from that reached by this Court in 2021.

The reliability of the appellant’s confessions in interview was similarly considered in detail at trial and in the first appeal. At the time of the appellant’s interviews the Code of Practice under the Police and Criminal Evidence Act 1984 permitted the police to deny a suspect access to legal advice in certain circumstances. The defence were therefore able to address any suggested breaches of the Code. The defence were also able to address the issue of the appellant’s reliability and the appellant himself gave evidence about why he had given differing accounts of his movement.

Much of Professor Shepherd’s report is, in our view, of doubtful admissibility, being, on the face of it, an inappropriate expression of opinion about the conduct of the police interviews. Insofar as it deals with matters of psychological evidence relating to the appellant, the report does not, in our view, add anything of substance to the evidence of Dr Wood which was considered by this court in 2021. Again, we are not persuaded that we should reach a different conclusion.

We would add that, in any event, the evidence given at trial on the issues of the bite mark evidence and the reliability of confessions now has to be considered in the context of the DNA evidence as to the involvement of an unknown man. The new DNA evidence inevitably weakens each strand of the circumstantial evidence presented at trial, regardless of how strong those strands, whether individually or collectively, appeared at the time.

For those reasons we decline to receive as fresh evidence the statements of Professor Pretty and Professor Shepherd and we reject grounds 2 and 3.

However, we receive as fresh evidence the statements of Ms Alexander and Mr MacDonald. In the light of that fresh evidence, we allow the appeal on ground 1. We quash the conviction. As we have noted, the respondent very properly does not seek a retrial. The appellant must therefore be released from custody.

May we repeat our thanks to counsel for their assistance and for the manner in which the case has been presented.