R v Paris Court of Appeal Judgment 1992

My apologies for the loss of formatting.


ANTHONY PARIS YUSUF ABDULLAHI STEPHEN WAYNE MILLER

COURT OF APPEAL (The Lord Chief Justice (Lord Taylor), Mr. Justice Popplewell and Mr. Justice Laws):
December 7, 8, 9, 10, 16, 1992


Evidence
-
Admissibility
- Confession-Whether Obtained by Oppression-Whether Admissible-Police and Criminal Evidence Act 1984 (c. 60), s. 76(2).
By section 76(2) of the Police and Criminal Evidence Act 1984:
"If in any proceedings where the prosecution propose to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained - (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might have been made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid."
The Court emphasised the need of those involved in the training and discipline of police officers to ensure that all necessary steps are taken to see that the Police and Criminal Evidence Act 1984 (s.66 (»»text)) Codes of Practice are followed. Similarly, solicitors assisting a suspect during police interviews are equally under a duty to follow the guidelines published by the Law Society on "Advising a Suspect in a Police Station" (3rd ed., 1991). The three appellants and two co-accused were charged with the murder of a prostitute, with whom M had been living until shortly before her death. There was no forensic evidence against any of the defendants. Against M the prosecution case rested on the evidence of two discredited witnesses, M's own admissions and admissions he made to two visitors while in prison. After hearing part of the confession evidence on tape the trial judge ruled it admissible. The three appellants were convicted of murder, the two co-accused were acquitted. On appeal, it was contended that M's confession evidence was unreliable, having been obtained by oppression and, accordingly, inadmissible.
Jump to [Next][Previous] page
(1993) 97 Cr.App.R. 100
Held, allowing the appeals, that although it was perfectly legitimate for police officers to pursue their interrogation of a suspect with the intention of eliciting his account or gaining admissions, and they were not required to give up after the first denial or even a number of denials, it was undoubtedly oppressive within the meaning of section 76(2) of the Police and Criminal Evidence Act 1984 to shout at a suspect, as had occurred in the case of M, what they wanted him to say after he had denied involvement over 300 times. Thus the confessions obtained were unreliable, particularly in view of the fact that M was on the borderline of mental handicap. Accordingly, considering the tenor and length of the police interviews, those interviews ought not to have been admitted in evidence. Since there was insufficient evidence apart from the confessions safely to support a conviction against M and the jury might have been prejudiced by that confession evidence against the appellants P and A, despite an impeccable direction from the trial judge, those convictions were also unsafe and unsatisfactory and would also be quashed. Fulling (»»text) (1987) 85 Cr.App.R. 136, [1987] Q.B. 426 applied. [For s.76 of the Police and Criminal Evidence Act 1984, see Archbold (1993) paras. 15-291, 292. For "oppression," see, ibid., paras. 15-295, 296.]
Appeal against conviction. On November 20, 1990, in the Crown Court at Swansea [Leonard J.) the appellants Paris and Miller were each convicted, by a unanimous verdict, of murder. On November 22, 1990, the appellant Abdullahi was also convicted, by a unanimous verdict, of murder. On that date all three were sentenced to life imprisonment. The facts appear in the judgment. The main ground of appeal related to Miller's interviews with the police and submissions that the evidence obtained against him thereby should have been excluded under sections 76(2) and 78 of the Police and Criminal Evidence Act 1984 (»»text). The appeals were argued on December 7, 8, 9 and 10, 1992, on the conclusion of which the Lord Chief Justice stated the appeals would be allowed, reasons being given at a later date.
Gerard Elias, Q.C., and Jocelyn Gibbs for the appellant Paris. Roger Backhouse, Q.C., and Ian Pritchard-Witts for the appellant Abdullahi. Michael Mansfield, Q.C., and Nicholas Blake (neither of whom appeared below) for the appellant Miller. David Elfer, Q.C., and Huw Davies for the Crown.
Cur. adv. vult.
December 16. THE LORD CHIEF JUSTICE read the judgment of the Court. On December 10, 1992, we allowed the appeals of each of these three appellants against their convictions for murder. We now give our reasons. The appellants were convicted on November 20, 1990, after a trial lasting some six months. Two co-accused, John and Ronnie Actie, were acquitted. This was the second trial, the first having been aborted shortly before it was due to end owing to the death of the trial judge. There can be no doubt that the deceased, Lynette White, was murdered in the early hours of February 14, 1988. The issues in the case were, who killed her and who was involved. Lynette White was a 21-year-old prostitute in the docks area of Cardiff. She had been living with the appellant Miller, but a few days before her death she had left him. She was using flat No. 1 at 7, James Street for her business. She had been allowed to do so by her friend, Leanne Vilday, another prostitute, who was the tenant
Jump to [Next][Previous] page
(1993) 97 Cr.App.R. 101
of that flat. Vilday was at the time living with a third prostitute, Angela Psaila, at the latter's flat, 19, St. Claire's Court within sight of 7, James Street. Flat No. 2 at 7, James Street was above No. 1, and was occupied by Mark Grommek. About 9 p.m. on February 14, 1988, Vilday took the police to 7, James Street claiming simply that she had not seen Lynette for some days. The police found the deceased lying on the floor in the front room of the flat in which the only furniture was a low bed. She was fully dressed save for one shoe. She had been stabbed at least 50 times. Most of the stab wounds were in the area of her chest and breasts. There were also slash wounds, stabs to the abdomen and defence injuries to the hands. Both the deceased's wrists had been cut and her throat was cut through to the spine severing the carotid artery. That last injury was the primary cause of death, and the pathologist thought it had been inflicted at an early stage in the assault. There was a report that a white man with an injured hand had been seen in the vicinity and police inquiries were for some time aimed at finding him. None of the five eventually charged was white. Miller was sought as an associate of the deceased and went voluntarily to a police station. During February and March he made a number of statements describing his relationship with the deceased and stating his movements on the relevant night. Essentially these were between certain public houses and the Casablanca Club. Blood staining on the deceased's clothes, the carpet and the wall were analysed, as were many fingerprints, but police inquiries made no progress until the period November to December 1988. In that period Grommek, Vilday and Psaila, who had until then denied all knowledge of the killing, began to volunteer information. Grommek said he had opened the front door to several men including the appellant Abdullahi. The men had gone into Lynette's flat and he then heard screams. Vilday and Psaila said they heard screams and ran to No. 7, James Street, where they saw Lynette lying on the floor with several men in the room. Those identified included the three appellants and the two co-accused, John and Ronnie Actie, who were acquitted by the jury. Others were also alleged to have been there, but those allegations were subsequently retracted. Grommek eventually admitted a man named Atkins had been with him in flat 2, had gone down to flat 1 after the screams and returned saying there had been a murder. Vilday and Psaila changed their accounts a number of times. Suffice it to say their final version in evidence was that they had both gone into the room whilst Lynette was being attacked. They had each been forced to take a knife and cut Lynette, one of them her wrists, the other her throat, so that they would be implicated and compelled to silence. They each named the appellants as being involved. Vilday said Paris stabbed Lynette; Psaila said all five accused did so. However, they had lied and contradicted themselves so much by the end of the trial that the judge indicated to the jury, and indeed the Crown accepted, that they had effectively to be regarded as discredited witnesses. Grommek too was shown to be unreliable. Atkins was not called by the prosecution, who were not prepared to rely upon him. He was called by the judge, cross-examined and wholly discredited. None of the five accused had blood matching any of the blood-staining found at the scene. Nor was any of the deceased's blood traced to any of their clothes or possessions. On the other hand there was evidence of blood present from an unidentified male. No link was found between the scene of the crime and any of the accused by way of fingerprints, fibres or other scientific evidence. What then was the basis of the Crown's case against each appellant?
Jump to [Next][Previous] page
(1993) 97 Cr.App.R. 102
The Crown's theory at trial was that Miller, who abused drugs and had no income of his own, had relied upon Lynette's earnings. When she left him, he became increasingly angry. He tried to find her and located the flat through Vilday. It was suggested that the other accused had gone with him to teach Lynette a lesson, or show him how to control her, but the plan had gone wrong and certainly had gone too far. There was then a pact of silence.

Miller's case

Against Miller the Crown relied essentially on three heads of evidence: (1) Vilday and Psaila, despite the extent to which they were discredited; (2) Miller's interviews, (3) His admissions to Mrs. Sidorak and Miss Taylor, who visited him in prison. Of these, the interviews were crucially important, not only in Miller's case but, as we shall indicate, in the cases of all three appellants. Miller was arrested on December 7 in London. He was taken to Cardiff and over five days, between December 7 and 11, he was interviewed for some 13 hours. All of the interviews were tape-recorded, and in total there were 19 tapes. Although a solicitor was engaged from the start, he was not allowed to be present during the first two interviews on December 7. From the third interview on December 8 onwards he was present. On tapes 1, 2, 6 and 7, the interviewing officers were Detective Constables Greenwood and Seaford. On all the other tapes the interviewing officers were Detective Constables Evans and Murray, save for 16 and 17 when Detective Constable Toogood replaced Detective Constable Murray. In summary, Miller denied both participation and presence at the scene on tapes 1 to 7. On 8 and 9 he began to accept he was present. Thereafter he was pressed to say who had stabbed Lynette and eventually to admit that he did. Having denied involvement well over 300 times, he was finally persuaded to make three admissions on which the prosecution particularly relied, in addition to his admission to being present. The first of those was on tape 18, where page 7 of the transcript records him as saying "Paris went crazy so I started stabbing." Miller was speaking very fast at that point and the word "I" is by no means clear. It was certainly not taken up by the officers at the time as an admission that he had stabbed Lynette. Secondly, towards the end of tape 18 the officers put it to Miller that he was drugged and may have stabbed Lynette without knowing what he was doing. Thus at page 81 of the transcript Detective Constable Murray said:
"O.K., O.K. at least we can now say we've got it right, because even if you can't say yes I did, or no I didn't. You were so blocked up you didn't know what you were doing."
At page 84 Miller said, "That's what I say, I don't know. I might have done, I might have done." Thirdly, on tape 19 at page 52 of the transcript the appellant said after a period of pressure, "I just stabbed her, not stabbed her just fucking thumped her in her face I mean." Mr. Mansfield, who did not appear in the court below, submits that the interviews were oppressive and the whole course of questioning was such as to render Miller's admissions unreliable. He relies on section 76(2) of the Police and Criminal Evidence Act 1984, which provides as follows:
"(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained - (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession
Jump to [Next][Previous] page
(1993) 97 Cr.App.R. 103
which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid."
Three points on that section require emphasis. First, the issue having been raised by the defence, the burden of proving beyond reasonable doubt that neither (2)(a) nor (2)(b) applied was on the Crown. Secondly, what matters is how the confession was obtained, not whether or not it may have been true. Thirdly, unless the prosecution discharged the burden of proof, the judge was bound as a matter of law to exclude the admissions. His decision was not discretionary. As to the meaning of "oppression," we refer to Fulling (»»text) (1987) 85 Cr.App.R. 136, [1987] Q.B. 426. At pages 142 and 432, Lord Lane C.J. said:
"'oppression' in section 76(2)(a) should be given its ordinary dictionary meaning. The Oxford English Dictionary as its third definition of the word runs as follows: 'Exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc.; the imposition of unreasonable or unjust burdens.'"
We have read the transcripts of the tapes and have heard a number of them played in open court. It became clear that the two pairs of officers employed different methods. Greenwood and Seaford were tough and confrontational. Evans and Murray were milder in manner, aiming to gain the appellant's confidence and persuade him to accept their version of the facts. We are bound to say that on hearing tape 7, each member of this Court was horrified. Miller was bullied and hectored. The officers, particularly Detective Constable Greenwood, were not questioning him so much as shouting at him what they wanted him to say. Short of physical violence, it is hard to conceive of a more hostile and intimidating approach by officers to a suspect. It is impossible to convey on the printed page the pace, force and menace of the officer's delivery, but a short passage may give something of the flavour:

Stephen Wayne Miller:"I wasn't there." D. C. Greenwood:"How you can ever . . ?" Stephen Wayne Miller:"I wasn't there." D. C. Greenwood:"How you . . . I just don't know how you can sit there, I . . ." Stephen Wayne Miller:"I wasn't . . ." D. C. Greenwood:"Really don't." Stephen Wayne Miller:"I was not there, I was not there." D. C. Greenwood:"Seeing that girl, your girlfriend, in that room that night like she was. I just don't know how you can sit there and say it." Stephen Wayne Miller:"I wasn't there." D. C. Greenwood:"You were there that night." Stephen Wayne Miller:"I was not there." D. C. Greenwood:"Together with all the others, you were there that night." Stephen Wayne Miller:"I was not there. I'll tell you already . . ." D. C. Greenwood:"And you sit there and say that." Stephen Wayne Miller:"They can lock me up for 50 billion years, I said I was not there." D. C. Greenwood:"'Cause you don't wanna be there." Stephen Wayne Miller:"I was not there."
Jump to [Next][Previous] page
(1993) 97 Cr.App.R. 104
D. C. Greenwood:"You don't wanna be there because if . . ." Stephen Wayne Miller:"I was not there." D. C. Greenwood:"As soon as you say that you're there you know you're involved." Stephen Wayne Miller:"I was not there." D. C. Greenwood:"You know you were involved in it." Stephen Wayne Miller:"I was not involved and I wasn't there." D. C. Greenwood:"Yes you were there." Stephen Wayne Miller:"I was not there." D. C. Greenwood:"You were there, that's why Leanne is come up now . . ." Stephen Wayne Miller:"No." D. C. Greenwood:"'Cause her conscience is . . ." Stephen Wayne Miller:"I was not there." D. C. Greenwood:"She can't sleep at night . . ." Stephen Wayne Miller:"No. I was not there." D. C. Greenwood:"To say you were there that night . . ." Stephen Wayne Miller:"I was not there." D. C. Greenwood:"Looking over her body seeing what she was like . . ." Stephen Wayne Miller:"I was not there." D. C. Greenwood:"With her head like she had and you have got the audacity to sit there and say nothing at all about it." Stephen Wayne Miller:"I was not there." D. C. Greenwood:"You know damn well you were there." Stephen Wayne Miller:"I was not there."

and so on for many pages. We have no doubt that this was oppression within the meaning of section 76(2). Mr. Elfer submits that Miller stood his ground and made no admission in that interview despite what he concedes was bad behaviour by the officers. Moreover, his solicitor was present to look after his interests. In our view, although we do not know what instructions he had, the solicitor appears to have been gravely at fault for sitting passively through this travesty of an interview. We are told he was called to give evidence at the first trial but not the second, and he agreed in evidence, having heard the tapes played, that he ought to have intervened. As to Miller standing his ground, it is significant that in the very next interview (tape 8) within an hour after the bullying, he was persuaded by insidious questioning to concede that under the effects of drugs, it was possible he was there and did not remember it clearly. Thus at tape 8, page 32, he said:
"I am just . . . I am just certain that I wasn't there that's all, I am, I am certain I wasn't there but it could . . . it could happen, it could have happened."
Once he opened that chink, the officers kept up the questioning to open it further. Of course, it is perfectly legitimate for officers to pursue their interrogation of a suspect with a view to eliciting his account or gaining admissions. They are not required to give up after the first denial or even after a number of denials. But here, after the oppression in tape 7, Mr. Mansfield complains that the other officers were also guilty of a less blatant form of oppression. They made it clear to Miller on many occasions that they would go on questioning him until they "got it right." By that they clearly meant, until Miller agreed with the version they were putting. Mr. Mansfield submits that additional pressure was applied by telling the appellant he was talking drivel and rubbish and telling him his alibi was blown away. The alibi had never been totally water-tight, but so far as it went, it was not, on the
Jump to [Next][Previous] page
(1993) 97 Cr.App.R. 105
police information, blown away. The prosecution's version of events was said to be supported by a number of witnesses, which it was not. Vilday's account was put again and again as being wholly reliable. Miller was threatened with the prospect of a life sentence more than once. Much of the interviewing was taken up, not with questions put to the appellant but with the officers putting detailed descriptions of what they believed had happened and what role Miller may have played. Thus, they persistently suggested he was "stoned" due to the effects of cocaine so as to persuade him that he might have been present even though he had no clear recollection of it. Having gained admissions by this approach, the officers then insisted that the appellant must know and tell them every detail of what occurred at the scene, e.g. which way Lynette fell, where the body was in the room, who came in, at what stage and so on. It is submitted that Miller was in effect brain-washed over these 13 hours into repeating back to the officers facts they had asserted many times to him. It is clear on listening to the tapes that for extended periods, Miller was crying and sobbing, yet he was not given any respite. It is true that after some of the interviews concluded, he was asked if he wanted a break and he expressed willingness to continue. The context was that he was being led to believe the officers were seeking to eliminate him from participation in the attack and he wanted to get to the end of the questioning. The solicitor in attendance did intervene during the last tape (tape 19, p. 15). He said he had asked to be allowed to take instructions from Miller between tapes 18 and 19, since fresh matters had been raised. Presumably, the fresh matters were the officers' ultimate assertions that Miller had not only been present but had himself stabbed the deceased. The solicitor's request had not been met and he renewed it. The officers fobbed him off by refusing to interrupt the interview but promising to inform the custody officer of his request. They never did. Having considered the tenor and length of these interviews taken as a whole we are of opinion that they would have been oppressive and confessions obtained in consequence of them would have been unreliable, even with a suspect of normal mental capacity. In fact, there was evidence on the voir dire from Dr. Gudjonsson, called on behalf of Miller, that he was on the borderline of mental handicap with an IQ of 75, a mental age of 11 and a reading age of eight. It is fair to the learned judge to say that, although he was invited to listen to part of tape 7, it was played only up to page 17 of the transcript. The bullying and shouting was from page 20 onwards. Why the most important part was not played to the learned judge has not been explained to us. Had he heard the rest of it, as we did, we do not believe he would have ruled as he did. In the upshot, it is sufficient to say that in our judgment the Crown did not and could not discharge the burden upon them to prove beyond reasonable doubt that the confessions were not obtained by oppression or by interviews which were likely to render them unreliable. Accordingly, in our view these interviews ought not to have been admitted in evidence. The third limb of the prosecution case against Miller was the evidence of Mrs. Sidorak and Miss Taylor. The latter had become Miller's girlfriend after the death of Lynette. Mrs. Sidorak was a friend and the two women visited Miller in prison on December 17, some six days after the interviews concluded. Mrs. Sidorak said she asked Miller point blank: "Did you do that girl in?" He replied that Lynette was missing, he went to look for her and he was "the last to find her." He had come into the room at the last moment when Lynette was being attacked. Someone said he would show Miller how to control her. There were two knives being wielded; he was frightened and ran from the room.
Jump to [Next][Previous] page
(1993) 97 Cr.App.R. 106
Miss Taylor also described the conversation in prison. She confirmed that Miller said he was the last to find Lynette. He said repeatedly he had nothing to do with her murder. He had come to the scene when Lynette was being stabbed and had run out of the room in fear. Although these alleged admissions (which were denied by Miller) involved no confession that he stabbed Lynette, the Crown relied upon them as confirmation that Miller was present during the stabbings. Mr. Mansfield contended that Miller may still have been labouring under the brain-washing he had received during the police interviews. However this may be, we have no doubt that the impact of the lengthy interviews and the emphasis placed upon them by the Crown must have figured large in the jury's minds. Given the unreliability of Vilday, Psaila and Grommek, as well as the total absence of fingerprint or scientific evidence against Miller, the interviews were obviously central to his case. Since in our judgment they were wrongly admitted, we do not consider that what remained, even taking into account the evidence of Mrs. Sidorak and Miss Taylor, could safely support a conviction in his case. Fairly and realistically, Mr. Elfer accepted that this was so. For those reasons we allowed the appeal of Miller.

Effect on Paris and Abdullahi

It is next necessary to see what effect, if any, our conclusion that Miller's interviews should not have been admitted has upon the appeals of Paris and Abdullahi. Submissions were made to the learned judge that Miller's case should be severed from the rest, because of the prejudicial effect of his interviews on the other accused. In those interviews Miller strongly and repeatedly implicated both Paris and Abdullahi. The learned judge rejected the applications for severance. In a careful ruling he stressed the problems of inconsistency if two juries had to consider what was essentially a single episode. He also pointed to the disadvantages of two lengthy trials, witnesses having to repeat their evidence and prejudice from the reporting of the first trial. In our opinion, the learned judge's exercise of his discretion against severance cannot be faulted. However, as he recognised, it became very important for him to give the jury clear directions as to what evidence was and what was not admissible in the case of each defendant. This the learned judge did impeccably and no criticism can be made of his summing up, which was a mammoth undertaking, carried out admirably. In particular, he advised the jury (he could do no more) to consider Miller's case last so as to avoid any risk of taking his interviews into account in relation to other accused against whom they were inadmissible. Had it been possible to be sure that the jury followed the learned judge's directions correctly, then, although Miller's interviews should not have been admitted against him, in strict logic their presence in the trial ought not to have prejudiced the other accused. However, not only can we not be sure of that, the indications are to the contrary. The jury seem to have considered and reached their verdicts in indictment order, Miller first. Thus they appear to have rejected the learned judge's advice. Furthermore, after convicting both Miller and Paris, the jury returned to court to ask the following question:
"Does denial of presence in the murder room mean that a defendant is guilty? However, if a defendant went to the flat thinking that Lynette White was going to be slapped about or frightened and then a knife was produced and he took no part, then would that defendant be guilty of murder?"

Jump to [Next][Previous] page
(1993) 97 Cr.App.R. 107
That question mystified the learned judge as he indicated to counsel. The issue raised by the jury's question had arisen in Miller's interviews in relation to his own role. It had not been raised on behalf of any other defendant and by this stage the jury had already convicted Miller. The inference is strong therefore that the jury were still having regard to Miller's interviews whilst considering the other accused. They had in fact asked during their retirement for part of tape 18 of Miller's interviews, which bore on this issue, to be played again to them. Next, the jury acquitted the two Acties. That clearly showed that they were not prepared to rely on the uncorroborated evidence of Vilday and Psaila. Whereas Miller's interviews placed both Paris and Abdullahi in the forefront of the attack on the deceased, some of his replies had the two Acties leaving before the stabbing, which could explain their acquittal. Finally, despite the strict logic mentioned above, whilst a defendant may have to accept the admission of evidence relevant only to another accused where they are jointly tried, he should not have to suffer the admission of prejudicial evidence in the trial which is not admissible against any one. Once we indicated to Mr. Elfer the view we had formed about the admission of Miller's interviews, he very properly conceded that the verdicts in relation to Paris and Abdullahi could not be regarded in all the circumstances described above as safe and satisfactory. We agree. That is sufficient to dispose of their appeals, but we consider it desirable to deal individually with their cases.

Paris

As with all those accused, the case for the Crown against Paris depended in part upon the evidence of Vilday and Psaila. Their evidence against Paris was not corroborated by any other witness claiming to have been at or near 7, James Street on the night of the murder. Nor, as already indicated, was there any scientific evidence to connect Paris with the crime. However, the case against him was said to be corroborated by the evidence of a fellow prisoner, Albert Massey. He was serving a sentence of 14 years' imprisonment for armed robbery. When cross-examined at this trial on behalf of Paris, he agreed he had given perjured evidence at his own trial and that he was a professional criminal. In December 1988 he was at Cardiff prison where he met Paris. They got talking about the case. On one occasion Paris said he knew for a fact that Abdullahi was at the scene. Massey asked him how he knew if he was not there. Paris, he said, "was a bit stuck for words then." In a later conversation, Massey said, Paris admitted being involved in the incident. He said he had stabbed Lynette, and that he was the first one to do so, but that he did not mean to stab her. She was struggling as all of those present were trying to grab hold of her. He said that he did not mean to kill her and she was not dead after he had stabbed her. He told Massey that the two Acties, Abdullahi and Miller were there; that Abdullahi had a knife, but more than one knife was being used; that one of the girls (Vilday or Psaila) was made to cut Lynette by John Actie; that the police had no "forensic" against him; that he had procured a false alibi to the effect that he was at the Casablanca Club; and that the two "queers" (Grommek and Atkins) had "put him in the frame." It was submitted to the trial judge that Massey's evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984 (»»text). The submission depended in large measure on circumstances concerning a police officer named Corley who, in May 1989, was convicted of conspiracy to rob and of a firearm offence and was sentenced in all to 17 years' imprisonment. The robbery had
Jump to [Next][Previous] page
(1993) 97 Cr.App.R. 108
occurred in November 1987 and three other men pleaded guilty to it. They all gave evidence for the Crown at Corley's trial. On January 11, 1988, Massey gave a statement implicating Corley. He alleged he had received a gun from Corley. Massey did not give evidence against Corley at the latter's trial. Corley's appeal against conviction was allowed on March 19, 1990, on the basis that he was entirely innocent of what had been alleged against him and had been "framed." When cross-examined in the present case, Massey insisted on the truth of what he had told the police about Corley. The case for Paris, both in cross-examination and in submissions to the learned judge, was that Massey had implicated Corley for self-serving reasons of his own. He now refused to retract them for similar reasons. His evidence against Paris was likewise given to serve himself. Massey said in cross-examination in relation to his implication of Corley, that a police inspector had promised to put in a word for him in relation to an outstanding appeal of his own against conviction and sentence. That appeal was, in fact, dismissed. As regards his account of what Paris said to him, he said he was told by a Sergeant Duxbury that information he gave about the Cardiff murder would be a "feather in his cap" in relation to parole. These were not the only points made by Mr. Elias at trial to persuade the learned judge to exclude Massey's evidence, but it is unnecessary to rehearse the rest. The learned judge summarised Mr. Elias's submission on section 78 (»»text) as follows:
"The proposition is put in two ways: "First, this evidence is unfair because the inducements and privileges known and unknown from early 1988 may well have resulted in Massey's coming forward with the evidence in the present proceedings; secondly, the admission of the evidence is unfair because of the difficulties the defence must have in meeting it, arising out of the circumstances in which Massey gave the information to the police. It is argued that the giving of false evidence against Corley by witnesses in his trial was a result of a conspiracy of which Massey may have been a part . . . It is difficult, it is said, for the defence to show the whole picture to the jury especially since the officers in the Corley case are suspended."
After recording the Crown's submission that the defence could explore Massey's motives in making the statement against Paris by cross-examining the Detective Inspector who took it, and after referring to Quinn (»»text) (1990) Crim.L.R. 581, the learned judge expressed himself satisfied that the admission of Massey's evidence -
"would not have such an adverse effect on the fairness of the trial that I ought to exclude it. I believe it is material for the jury to consider and that they will have before them sufficient information on which to base their conclusions fairly."
It is difficult to fault the judge's exercise of discretion in admitting Massey's evidence. It could not of itself give rise to a successful appeal in this Court. The judge reviewed the material carefully and thoroughly. However, as the learned judge himself recognised,
"There was a good deal of material amongst the papers I have been shown to justify concern as to the motives of Massey and his dealings with the Corley affair."
Furthermore, as it transpired, his evidence was the only potential corroboration in Paris's case of the testimony of the two women. Thus, the case against him was based upon the unreliable evidence of those two women, plus the suspect testimony of Massey. We should record that the learned judge was at great pains to emphasise in his summing up that Miller's interviews were not evidence against Paris. Indeed, in this court's view, there is no sustainable criticism of the way in which the learned judge
Jump to [Next][Previous] page
(1993) 97 Cr.App.R. 109
summed up either on this aspect, or in relation to Massey's evidence. It is said on Paris's behalf that instead of telling the jury to "exercise the greatest care" in relation to Massey's evidence, the learned judge should have directed them to "exercise the greatest caution." In our judgment, this is a verbal distinction without a difference. Nor was the learned judge in error in directing the jury, as a matter of law, that Massey's evidence was capable of corroborating that of Vilday and Psaila. This court detects no other good ground of appeal arising from the way the learned judge dealt with Massey's evidence once it had been let in. Having said all that, for the reasons indicated earlier, the admission in evidence of Miller's interviews must, in our judgment, have been prejudicial to Paris's case and for that reason we quashed his conviction.

Abdullahi

The case against Abdullahi again depended partly on the evidence of Vilday and Psaila. Again, there was no scientific evidence implicating him. Nor did he make any admissions. Grommek, in evidence, said Abdullahi was one of the men whom he admitted to 7, James Street and who entered flat No. 1, but he was an unsatisfactory witness. Jane Sandrone and Noreen Amil were partners in running the Dowlais Club. The former said Abdullahi admitted to her some three weeks after the murder that he had been involved and had cut his hand in the course of the murder. She did not believe him, thought he was affected by drink and did not mean what he said. So she did not report it until the police saw her in April. Noreen Amil was called for the defence. She was present with Jane Sandrone during the conversation and was adamant that no admission was made by Abdullahi about being present or participating in the killing. Jacqueline Harris had been Abdullahi's common-law wife but left him in August 1988. She gave evidence that he told her he was both present and had killed Lynette, although she did not believe him. Later she retracted that he said he had killed Lynette. She admitted lying and wanting to hurt Abdullahi. The other evidence relating to him centred on his alibi. He claimed to have been working on a boat named The Coral Sea at Barry dock, nearly eight miles from the scene of the murder on the night it happened. A number of witnesses were called on both sides. They confirmed that in the period February 9 to 15, Abdullahi was working on the boat and sleeping nights there, but there were conflicting accounts as to whether he had been brought into Cardiff on the night of the murder or on the next night. In Abdullahi's case, therefore, as with the others, the evidence for the Crown was by no means compelling. The original grounds of appeal on his behalf were (a) severance having been refused, the prejudice occasioned by Miller's interviews and the jury's reliance upon them in Abdullahi's case, and (b) the total unreliability of the evidence against Abdullahi and the strength of his alibi evidence. At a very late stage, further grounds were added alleging non-disclosure and pressure on prosecution witnesses. Those grounds were not developed in view of the concessions by the Crown and our conclusions following our decision to allow Miller's appeal.

Conclusion

Before parting with this case, we should comment on the apparent failure of the provisions in the Police and Criminal Evidence Act 1984, to prevent evidence obtained by oppression and impropriety from being admitted. In our judgment, the circumstances of this case do not indicate flaws in those provisions. They do indicate a combination of human errors.
Jump to [Next][Previous] page
(1993) 97 Cr.App.R. 110
First, the police officers adopted techniques of interrogation which were wholly contrary to the spirit and in many instances the letter of the codes laid down under the Act. In our view, those responsible for police training and discipline must take all necessary steps to see that guidelines are followed. Secondly, although we did not hear what his instructions were, the solicitor who sat in on the interviews, seems to have done that and little else. Guidelines for solicitors on "advising a suspect in the police station" were first published by the Law Society in 1985 with second and third editions in 1988 and 1991. The current edition provides under paragraph 6 as follows, inter alia:

"6.3.2you may need to intervene if the questions are: . . . (c) oppressive, threatening or insulting; 6.3.3you should intervene if the officer is not asking questions but only making his/her own comments . . . 6.4.1if questions are improper or improperly put, you should intervene and be prepared to explain your objections . . . 6.4.2if improprieties remain uncorrected or continue, advise the suspect of his/her right to remain silent."
It is of the first importance that a solicitor fulfilling the exacting duty of assisting a suspect during interviews should follow the guidelines and discharge his function responsibly and courageously. Otherwise, his presence may actually render disservice. We can only assume that in the present case the officers took the view that unless and until the solicitor intervened, they could not be criticised for going too far. If that is so, they were wholly wrong. Finally, it is most regrettable that the worst example of the police excesses (tape 7) was not played in full to the learned judge before he ruled on admissibility. Despite this combination of errors, it must be pointed out that the record of timings and the tape recordings of the interviews required by the Act, have enabled this Court to review what took place and, albeit belatedly, to allow these appeals. At the conclusion, we now direct the learned registrar to send copies of tape 7 to the Chief Inspector of Constabulary, to the Director of Public Prosecutions and to The Chairman of the Royal Commission on Criminal Justice.
Appeals allowed. Convictions quashed.
Solicitors: B. M. Birnberg & Co., for Miller. Leo Abse & Cohen, Cardiff for Paris. Bernard de Maid & Co., Cardiff, for Abdullahi. Crown Prosecution Service, South Wales and Gwent.
(1993) 97 Cr.App.R. 110: Davis, M.G.; Johnson, R.E.; Rowe, R.G.