Criminal law

R v Foran: Court of Appeal, Criminal Division: 7 October 2014

Appeal – Appeal against conviction – Defendant being found guilty of offences of robbery in 1978 – Evidence of admissions allegedly made to police officers being critical to convictions – Number of officers being part of West Midlands Police Serious Crime Squad

In June 1978, the defendant was tried upon an indictment charging him with six offences. He was found guilty upon counts 3 to 6 inclusive and sentenced to 10 years’ imprisonment concurrent on each count. Counts 3 to 6 each related to robberies which were said to have occurred in September and October 1977. The prosecution had no evidence with which to identify the defendant as being a person present at the robberies which were the subject of counts 3 and 4.

As to counts 5 and 6, there was an identification of the defendant made at an identification parade held in November 1977. It was common ground that the evidence that was critical to the convictions related to admissions allegedly made to police officers. T confirmed H’s evidence that during interview in October 1977, the defendant had admitted the robbery which was the subject of count 5.

W and B asserted that the defendant had later confirmed his earlier admission. J and D asserted that, in April 1978, the defendant had made admissions in respect of the robberies. Of those officers who gave evidence concerning counts 3 to 6, T, H, J and D were all members of the West Midland Police Serious Crime Squad (the serious crime squad). C, W and B were not members of the serious crime squad. In March 1980, the defendant’s renewed application for leave to appeal was refused.

In August 1989, the serious crime squad was disbanded. A subsequent investigation 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 serious crime squad had been quashed by the court.

In January 2013, the defendant made an application to the Criminal Cases Review Commission (CCRC) for a review of his case. The CCRC subsequently referred the convictions to the Court of Appeal, Criminal Division, under section 9 of the Criminal Appeal Act 1995. The grounds for referral were that further information had come to light which cast doubt upon the prosecution case proved by police officers that the defendant had confessed to the counts 3 to 6 offences and, accordingly, the verdicts were unsafe.

The issue for determination was whether, in the light of later events, it was demonstrated that the officers’ evidence had been unreliable and, accordingly, that the verdicts were unsafe. That involved a consideration by the court of the particulars facts of the appeal, including the nature of the information available to the court as to the discredit of witnesses who had given evidence in the original trial. Consideration was given to the successful appeal in R v Twitchell ([1999] All ER (D) 1161) (Twitchell). During that appeal, evidence had been given by T and another police officer B.

The appeal would be allowed.

(1) Membership of the serious crime squad in the 1970s was not an automatic gateway to successful appeals against historic convictions obtained by evidence of confession. The issue of whether there was material, subsequently gathered, which tainted the credibility of a witness to such an extent that the safety of verdicts was placed in doubt, could be tested 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 might have had the effect of casting doubt upon the reliability of the witness and thus the safety of the verdict.

However, evidence might be tainted by subsequent events although no specific findings of corruption or perjury had been made against an officer concerned (see [34], [36] of the judgment).

In respect of counts 3 and 4, the material available for cross-examination of T and B in Twitchell had been 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, J’s own evidence would have suffered the same taint since he had been supporting the thrust of their evidence.

In the absence of any other admissible evidence implicating the defendant in the robberies charged in counts 3 and 4, any legitimate attack upon the credit of either D or J affected the safety of the verdicts upon those counts.

The fact that there had been nothing in the background or later events to cast doubt on the honesty of D did not determine the question whether the verdicts on those counts were unsafe. It was enough that there was material on which J could legitimately have been cross-examined to effect.

There was no way of knowing how that would have affected the jury’s decision upon the reliability of the confession allegedly made in April 1978 but the challenge would have cast renewed light on its reliability. Accordingly, it was not possible to be sure that the verdicts on those counts were safe (see [55] of the judgment).

R v Edwards [1991] 2 All ER 266 considered; R v Edwards [1996] 2 Cr App Rep 345 considered; R v Twitchell [1999] All ER (D) 1161 considered; R v Crook [2003] All ER (D) 82 (May) considered.

(2) In respect of counts 5 and 6, the question for resolution was whether the specific material available for cross-examination of T and the general taint upon the leadership of the serious crime squad in 1977 was sufficient to place the confession evidence in doubt. Cross-examination of T would have had some impact upon the issue facing the jury. That fact had been bound to place the evidence of officers of the serious crime squad under pressure, particularly the evidence of H and D.

Although it was not possible to assess with any certainty what the outcome would have been, the jury would not have approached the evidence in categories each one hermetically sealed from the next. Once the jury had been faced with a further challenge to the accuracy and truthfulness of D’s evidence, there would have been a further ripple effect on their examination of his evidence in support of the confession allegedly made in April 1978, and the evidence of W and B supporting the alleged confession in October 1977. Whilst it was not possible to make findings adverse to the credibility of any officer, it was not possible to be sure that a verdict based upon on those alleged confessions was a safe verdict.

Although there had been a positive identification of the defendant, the identification could not be regarded as reliably supported by the evidence of confession (see [58], [59] of the judgment).

The defendant’s convictions would be quashed upon counts 3 to 6 inclusive (see [60] of the judgment).

R v Edwards [1991] 2 All ER 266 considered; R v Edwards [1996] 2 Cr App Rep 345 considered; R v Crook [2003] All ER (D) 82 (May) considered.

Elizabeth Nicholls (instructed by Olliers Solicitors) for the defendant; John Rees QC (instructed by the Crown Prosecution Service) for the Crown.