An appeal against conviction for murder was allowed where new evidence concluded that the appellant was educationally retarded, abnormally suggestible and potentially vulnerable when being interviewed by police as the essential and sole issue on which the jury were asked to judge the appellant's case had been whether his confession was voluntary and true or not.Appeal against conviction brought by the Criminal Cases Review Commission ('CCRC') under s.9 Criminal Appeal Act 1995. The appellant ('S') was convicted of murder on 13 December 1979 and sentenced to life imprisonment. S had previously appealed unsuccessfully. The CCRC's reference was precipitated by fresh evidence in the form of a report by a consultant psychologist, which concluded that S was educationally retarded, abnormally suggestible and thought to have been potentially vulnerable in the context of being interviewed by police. Those interviews ended in a confession. The truth of the confessions made by S were the central issue at his trial. S alleged that the confession had been obtained through intimidation and that he had been denied access to a solicitor and consequently the confession he had made was untrue. On being allowed access to a solicitor between the sixth and seventh police interview, S retracted his confession. A conversation then took place between S and DS Falconer ('F') during which F alleged that S had told him that his solicitor had made him retract his statement. S alleged that this was not the case and that F had told him he was a "pillock" for going back on his statement. The CCRC's statement of reasons drew attention to the similarity between this case and that of R v Ashley King (2000) 2 CAR 391, in which a consultant psychologist report had also played a major role. S submitted that the new evidence made his conviction unsafe irrespective of any breach of the Judge's Rules or of the absence of any modern safeguards, alternatively the conviction was unsafe in any event once such breaches or the absence of such safeguards were taken into consideration. Furthermore, the evidence of S's solicitor that S had told him immediately after his sixth police interview that the statement he had made to the police was not true but that he had made it because the police had "kept at him", should have been permitted by the trial judge and not refused on the ground of hearsay.HELD: (1) In deciding whether to receive the new evidence the court had regard to King (supra) where similar evidence was received and its reception was not opposed by the Crown. Therefore it should be received as meeting the requirements of s.23(a),(b),(c) and (d) of the Criminal Appeal Act 1968. (2) The new evidence showed that S, unknown to the jury or any other participant at his trial, was a far more vulnerable person in the context of his interviews than had been or could have been appreciated at the time. In a case which depended essentially on his confession, his conviction must therefore be regarded as unsafe. (3) It was not possible to regard the conviction as safe when the essential and sole issue on which the jury were asked to judge S's case was whether his confession was voluntary and true or not. The jury did not have the advantage of expert evidence as to S's vulnerability when alone in the police station during the lengthy interviews. (4) The fact that S was educationally retarded was of particular importance. Its importance was recognised under rule 4A of the Judge's Rules. It was clear from the evidence that a significant breach of the Judge's Rules had occurred. However, a need to show a breach in the rules then in force, although a factor in King (supra), was not a condition precedent to the success of that or this appeal. (5) The evidence of S's solicitor did not go to the truth of S's case that his confession was untrue but to the dispute on the evidence as to what S and F had said to the other at the seventh interview. The Crown had relied on the F's evidence of what S had said to him to support the inference that it was S's solicitor who had caused S to retract his confession. It was strongly arguable that in such circumstances the defence was entitled to adduce the evidence of S's solicitor that it was S himself who had stated that he wished to retract his confession. (8) Accordingly, S's conviction was unsafe.Appeal allowed.

[2003] EWCA Crim 1640

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