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R V Donald Pendleton [2000] EWCA Crim 45 (22nd June, 2000)
Case No: 99/0783/S1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of justice
Strand, London, wc2a 2ll
Thursday 22 June 2000
Before:
LORD JUSTICE PILL
MR. JUSTICE SACHS
AND
MRS. JUSTICE STEEL
____________________
Regina
V
Donald Pendleton
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
____________________
Mr Michael Mansfield QC & Mr Henry Blaxland Appeared on behalf of the
Appellant
Mr David Waters QC & Mr Jeremy Benson Appeared for the Respondent
____________________
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE PILL:
On 3 July 1986, in the Crown Court at Leeds before French J and a jury, Donald
Pendleton ("the appellant") and a co-accused John Thorpe were convicted of the
murder in 1971 of Bernard Clark. They were each sentenced to life imprisonment.
On 4 February 1999, the Criminal Cases Review Commission ("the Commission")
referred the conviction to this Court under section 9 of the Criminal Appeal
Act 1995. A renewed application for leave to appeal against conviction had been
refused by the Court on 8 June 1987.
The background
In the summary at the end of their statement of reasons, the Commission refer
to evidence obtained since leave was refused from Professor G H Gudjonsson,
consultant clinical psychologist, and to material contained in the Commission's
interview of Mr G Sharpe, who gave evidence at the trial. We propose to deal
with the reference, on the basis of written and oral submissions made to the
Court by Mr Michael Mansfield QC and Mr Henry Blaxland, neither of whom
appeared at the trial. Some of the matters which had initially troubled the
Commission are, for good reason, not pursued. Professor Gudjonsson gave
evidence before us, as did Dr R J Badcock, consultant forensic psychiatrist.
Both witnesses were cross-examined on behalf of the prosecution.
Bernard Clark was killed as long ago as the night of 2/3 June 1971. The police
conducted a major investigation at that time. No charge resulted from that
investigation and on 19 June 1971 a "suspects elimination form" was completed
with respect to the appellant. In late 1984, Sharpe approached the police to
say that he had information to implicate the appellant and John Thorpe in the
killing. In March 1985, Thorpe and the appellant were arrested. In long
interviews, the appellant made significant admissions as to his presence at the
scene of the murder. In June 1985 Mr B Gallimore made a statement in which he
alleged that admissions had been made to him in prison by Thorpe and the
appellant. At the time of the trial, relevant material, including a statement
made by the appellant on 19 June 1971, had been mislaid. Some of the material,
including the appellant's statement, has since been found. What has remained of
the record of the trial is far from complete but we have the advice of trial
counsel and the notes of the DPP's representative at the trial and the absence
of other documents does not prejudice the conduct of this appeal.
Clark, who was a newspaper seller on the streets and was known as Nobby, was
attacked at night and robbed of his watch and the contents of his money belt.
His body was found on 3 June lying in a stream, known as the Beck, just off
Ingleby Road, Bradford. The road crosses the stream at right angles. The stream
is at the foot of steep grassy banks. Death had been caused by asphyxiation
through inhalation of blood resulting from numerous injuries to the face,
including a fractured nose, jaw and temporal bone. Considerable force had been
used.
The trial
At the trial, the prosecution relied on the admissions made by the appellant
that he was with Thorpe on the evening of 2 June and was present with him near
the place at which the body was found. Sharpe's evidence was that he had seen
Thorpe and the appellant at the scene. Gallimore gave evidence of admissions
allegedly made to him. Thorpe gave evidence at the trial to the same effect as
he had in earlier statements to the police. The appellant had been present at
the scene and, according to Thorpe, had conducted the attack upon the deceased.
Upon advice from leading counsel, the appellant did not give evidence. In his
proof of evidence he had denied presence at the scene. His presence was not
however challenged in the course of the trial, the defence being run on the
basis that he did not participate in any attack upon Clark. Once the presence
of the appellant at the scene is accepted or established, it is not suggested
that a conclusion on the evidence that the appellant participated in the
offence was other than justified, though there was material upon which a case
of non-participation could realistically be advanced.
No criticism is made at this hearing of the way the appellant's case was
conducted at the trial by Mr SW Williamson QC and Mr J S Wolstenholme. An
advice was received from Mr Williamson on 25 April 1996, in the course of
investigations which led to the reference. The presence of the appellant at the
scene had not been challenged at the trial, notwithstanding the appellant's
statement that he was not there. Leading counsel states:
"However, his [the appellant's] instructions were clear enough that he was not
there and did not commit the murder but his instructions as to how he came to
make the lengthy interviews to the police, apparently recorded
contemporaneously, though not yet on tape, following the coming into force of
the Police and Criminal Evidence Act 1984, were sparse, and of themselves not
likely to believed ... ."
Counsel set out parts of the appellant's proof of evidence available at the
trial. Parts of it are set out later in this judgment. Counsel added:
"the central concern of me and my Junior was to try to improve on the how and
why, not of an old fashioned `voluntary statement' but of quite protracted
questions and answers in the post-1984 style, and bearing in mind Mr
Pendleton's experience of the police, not much was produced ... Any overturn of
the conviction would have to overturn the police interviews. I am not satisfied
that there is or ever has been the material, even in the more forgiving era
since 1984. ... Advice was tendered. It must have been that to give evidence he
was not there and that what he told the police was untrue -- he did admit
saying the things recorded -- was the certain road to disaster, but to leave
the jury with the prosecution case subjected to cross-examination was to give
him a chance on the non-involvement argument. Indeed we must have thought at
the time a fighting chance. Mr Pendleton accepted that advice and I am sure
understood it."
Given the material available to counsel at the trial, their approach to the
case is not criticised by Mr Mansfield on behalf of the appellant, nor could it
sensibly be criticised. Apparently weighty denials of participation by the
appellant in his police interviews accompanied the apparently significant
admissions of presence at the scene. The evidence of Gallimore supported a
defence case of presence without participation. Had the appellant given
evidence and denied presence, he was likely to have been disbelieved given the
lack of any explanation for his admissions. A jury whose members found him to
have been lying about presence would have been most unlikely to give weight to
evidence that he was not a participant in the attack on Clark.
The trial note of the representative of the DPP at the trial included a note
that he had been told that, after Thorpe had given evidence, the appellant had
said that he wanted to give evidence but had been discouraged from asking to do
so by his legal advisers. The work "asking" is no doubt used because, the
appellant being first on the indictment, the Court would have been told before
Thorpe had given evidence that the appellant was not giving evidence. The
fundamental change in the nature of the defence case at that stage involved in
calling the appellant would in any event have been extremely difficult because
prosecution witnesses had been cross-examined on the basis that the appellant's
presence at the scene was not contested. The safety of the verdict should, it
is submitted, be considered in the context not of the case put forward at the
trial but of the instructions given by the appellant that he was not present at
the scene.
Shortly after the trial, on 22 July 1986, Mr Wolstenholme, having discussed
the case with Mr Williamson, had advised that there were no grounds for
appealing against conviction. However, and putting it neutrally at this stage,
it is easy to understand the appellant's sense of frustration at hearing
Thorpe's evidence when his defence had been put on the basis of presence but
non-participation and the statement he had given to his legal advisers claimed
that he had not been present.
The appellant's case
Mr Mansfield's submission on behalf of the appellant is that there is now
material to explain why the appellant made false admissions to the police as he
has throughout claimed to have done. On the basis of Professor Gudjonsson's
evidence, the admissions made by the appellant in interview cannot be relied
upon. Had the evidence of Professor Gudjonsson and the appellant's then
mislaid statement been available at the time of the trial, the presence of the
appellant at the scene would be likely to have been contested. There would also
have been material as to alternative suspects which could have been placed
before the jury. On the material now available, the conviction is unsafe. That
case could have been supported, had the 1971 statements of the appellant and
other witnesses been available in 1985, with evidence of alibi. Moreover,
material is now available which casts doubt on the evidence of Sharpe and
Gallimore as to the appellant's presence at the scene of the murder. The
conviction involved an assumption of presence and was unsafe.
The Commission requested an interview with Thorpe. He refused to co-operate
with the Commission's investigation. Thorpe also gave long interviews in 1985.
The jury were properly directed by the judge that the contents of those
interviews could not be evidence against the appellant. In his evidence at the
trial, Thorpe said that he and the appellant were present and that it was the
appellant who attacked Clark. The judge took the unusual, but in the
circumstances proper course, of directing the jury to ignore Thorpe's evidence
against the appellant. He thought it fair to do so in the context of a case
where both men on the evidence admitted presence at the scene and the one who
gave evidence alleged that the one who did not was the attacker. The judge
could hardly have given that direction if both defendants had given
evidence.
Evidence of Professor Gudjonsson and Dr Badcock
Both witnesses provided comprehensive written reports. It was accepted that
their evidence should be received by this Court. Mr Mansfield accepted that it
was in the end for the Court to form its view as to the reliability of the
interviews having considered the expert evidence. He, and Mr David Waters QC
for the prosecution (who also did not appear at the trial), said that, unless
the Court wanted the witnesses called, they proposed to allow the Court to
reach its own conclusion on the basis of the written reports and the other
evidence now available. The Court took the view that there were points at issue
between prosecution and defence, as revealed in their written submissions,
which ought to be put to the witnesses orally. The Court having given that
indication, Mr Mansfield readily agreed to call the witnesses.
The Court has to consider the effect of a series of interviews conducted over
a period of three days, 23, 24 and 25 March 1985. Notes were made
contemporaneously. On one occasion, after the fourth interview on 23 March, the
appellant gave a statement in narrative form which was taken down. After the
second interview on 24 March, he was left with pencil and paper and wrote a
statement himself, running to about 300 words of handwriting. A short
hand-written statement was also provided after the second interview on 25
March. Detective Sergeant Light also gave evidence of answers given to him on
occasions on those days, other than those where a contemporaneous note was
made, including what the appellant said during a visit to the scene of the
crime in the afternoon of 24 March. The notes and records are accepted as an
accurate record of what the appellant said over the three day period.
The appellant told Professor Gudjonsson of his arrest (and later release)
about two years before his arrest in 1985 on suspicion of murder of another
man, Mr Jimmy Adams. This made him apprehensive. He also said that he had been
badly beaten by the police in about 1980 when arrested for a driving offence
and was fearful of them. It is not suggested by the appellant that he was
threatened with violence in 1985.
At the time of trial, the psychometric tests pioneered by Professor Gudjonsson
to measure psychological vulnerability relevant to the reliability of
confessions were not widely known. The results of such tests have since that
time often been admitted in evidence. Professor Gudjonsson has given evidence
in many cases, including in six cases before this Court. His report is dated 18
January 1999. His tests showed that the appellant's verbal scale IQ was 89
which puts him at the upper end of the low average range. It had been measured
as 87 in tests conducted before the trial. Intellectually, the appellant could
not be viewed overall as being significantly disadvantaged. The other
conclusions in the written report were as follows:
"2. The abnormally high acquiescence and inconsistency scores obtained during
the present testing indicated that Mr Pendleton has problems understanding
questions of moderate complexity, or that he answers questions without
carefully considering their content. The results indicate that Mr Pendleton has
a strong tendency to answer questions in the affirmative irrespective of
content.
3. Mr Pendleton proved to be abnormally suggestible on testing. All the
suggestibility scores were highly elevated and indicate that he tends to give
in very readily to leading questions and interrogative pressure.
4. The very high score obtained on the compliance scale falls well outside
normal limits and indicates that Mr Pendleton has a strong tendency to please
others and tries hard to avoid conflict and confrontation.
5. The scores obtained on the Eysenck Personality Questionnaire (EPQ-R)
indicate that Mr Pendleton is a highly anxious person with the temperament of
an extrovert. Mr Pendleton claims to be far less prone to anxiety than he was
previously. He attributes this to having matured in prison and to the fact that
the Criminal Cases Review Commission has taken an interest in his case. He also
claims that many people within the prison, including staff, believe in his
innocence which has given him a great deal of confidence. When his anxiety
proneness score (Neuroticism) was corrected for how he viewed himself before
his arrest in 1985 and in the first 10 years after his conviction, it falls
well outside normal limits. What can be concluded is that Mr Pendleton
currently reports being less anxious than he used to be, which is supported by
the reading from his Inmate Medical Record.
6. The very low score obtained on the Gough Socialisation Scale indicates that
Mr Pendleton has personality characteristics consistent with those typically
found in persons with personality disorder. It is consistent with the diagnosis
made in 1983 of Mr Pendleton of `inadequate psychopathic personality
disorder'.
7. I found no evidence that Mr Pendleton is mentally ill at present. He is
clearly a very anxious man and this was identified by Dr Badcock when he
assessed Mr Pendleton while he was on remand. His anxiety proneness is a
feature of his personality and is likely to be constitutional as suggested by
Dr Badcock.
8. As far as the police interviews and Mr Pendleton's self-incriminating
admissions are concerned, I am of the view that in 1985 he was a
psychologically vulnerable individual. He was an extremely anxious individual
who was finding it difficult to cope with life (his medical records confirm
this). The record of the police interviews gives an indication of his immense
distress and agitation concerning his arrest and questioning, which appear to
have been accompanied by a lack of concern or thought about the consequences of
his admissions. His anxiety proneness seems less pronounced now than it was in
1985, but in spite of this he proved to be abnormally suggestible, compliant
and acquiescent. These vulnerabilities are likely to have been present, and
possibly more marked, in 1985. Finally, it is evident from the transcripts of
the police interviews that Mr Pendleton was subjected to considerable pressure
to confess, pressure he was clearly having difficulties coping with.
9. Having considered this case carefully I have serious reservations about the
reliability of the self-incriminating admissions Mr Pendleton made to the
police in 1985."
Summarising his opinion orally, Professor Gudjonsson said that he did not know
if there had been a false confession but the appellant's personality disorder
may make him particularly vulnerable to making a false confession. There was a
serious question on the reliability of the confessions.
Cross-examined by Mr Waters, Professor Gudjonsson said that his report was
based on an interview of 2½ hours on 20 October 1998. The witness had told
the appellant that he should be as honest and helpful as he could. It was a
disadvantage to attempt to evaluate the issue 15 years after the interviews but
Professor Gudjonsson believed the vulnerability to be of long standing.
Professor Gudjonsson agreed that the effect of the interviews was to accept
presence at the scene of the crime but to deny any role in the attack on the
deceased. The witness said that it was not uncommon for a line to be drawn in
that way. The police did not pressure him to say that he was the principal
assailant. They did not seem to put an awful lot of pressure on him to say he
was the main attacker. The drawing of the line by the appellant does not
contradict the suggestibility finding. They were lengthy interviews. If the
police brought a great deal of pressure on him, he might have been prepared to
make admissions to get out of the situation in the belief that everything would
be alright. The witness was aware that the appellant had been at police
stations before. (The appellant had previous convictions.) It was a common
pattern to admit as much as the information available to the police required.
They did not have actual evidence of participation.
Professor Gudjonsson was asked about the detailed account given by the
appellant at page 22 of the bundle and set out later in this judgment. He
accepted that the police questioning was restrained at that stage and did not
suggest a particular account. Professor Gudjonsson accepted that the
appellant's account was a spontaneous one. The question was whether it was
genuine recollection or just making things up. Professor Gudjonsson said there
was no way he could tell.
As to the further detailed account (p 46 and following) after the appellant's
visit to the scene of the crime, Professor Gudjonsson said that it could be
true but there may have been contamination (by the visit). That was all he was
saying. He accepted that suggestion had not at that stage been put to the
appellant. On the face of it, the account looked like a spontaneous account but
the witness could not say whether the appellant was making it up. In relation
to that and other detail given by the appellant, Professor Gudjonsson said that
he did not know if the appellant was guessing or imagining. He might have
been.
Memory of detail does deteriorate with time especially if the person was under
the influence of drink or drugs. Professor Gudjonsson had no reason to doubt
that statements in the police interviews as to the use of drink and drugs by
the appellant at about the material time were true. The appellant had said that
he was on drink and tablets.
On re-examination, the witness was asked about the appellant's reference to
there being "steps" at the scene of the crime as described by him in interview.
It could have been a false memory, it could have been guessing, confabulation,
or the appellant could have thought that there were steps at the scene. The
most likely explanations were of a false image of steps or that he was just
guessing.
Dr Badcock provided two written reports for the purposes of the present
appeal, the first on 23 December 1998 and the second on 29 January 1999. As a
consultant forensic psychiatrist, Dr Badcock had examined the appellant,
conducting a total of five interviews between April 1985 and April 1986 for the
purposes of the trial. He had also seen him twice as a patient. In April 1986,
Dr Badcock's opinion was:
"1. Mr Pendleton is sane and fit to plead to the charge against him.
2. He has a tense anxious, dependent personality but shows no signs of mental
illness. Psychiatric supervision may help him control some of his feelings of
anxiety and he has been offered this on an outpatient basis.
3. I make no specific psychiatric recommendation in this case."
In December 1998, Dr Badcock, having studied the transcripts of interviews in
1985 and having considered Professor Gudjonsson's report, concluded:
"The interviews provide many examples of Mr Pendleton appearing anxious to
please the interviewing officers by answering their questions as directly and
fully as he can. There are indications that he may be suggestible in some of
his replies as a result of this, although no indications that this
suggestibility extended to the point of declaring guilt or complicity except in
moments of extreme and obvious distress. His statements at these times were not
followed up by the interviewing officers who terminated interviews at these
points because of his recognised distress.
There are no indications that the officers overly pressurised him in any way
but there are indications of him reacting in an extremely distressed way on at
least two occasions. Both of these occasions were accompanied by both agitation
and apparent panic. Although the second incident was ascribed to temper, in
fact a state of anxious collapse is the more likely interpretation. Although
the nature of his agitation was evident to the officers its origin was less
clear and they may not have taken account of such things as his expressed fear
of Mr Thorpe or his reasons for breaking down at the points he did. One was
precipitated by the introduction of Mr Thorpe's name and the other was
accompanied by the belief that he was not himself being believed.
I agree with Dr Gudjonsson that Mr Pendleton presented as a psychologically
vulnerable individual during the period of the police interviews. I also agree
that in some aspects of the interviews he appears to have been suggestible. I
am perhaps less confident than Dr Gudjonsson that all self-incriminating
admissions were obtained as a result of pressure to confess and, in the real
life situation, he seems to have steadfastly maintained his belief that he was
not directly involved in the death of Mr Clark."
Dr Badcock further reported in January 1999, having seen a statement made by
the appellant. Dr Badcock stated that the implications for his earlier report
were:
"My analysis of the police interviews as set out in my report of 23rd December
remains unaltered because it is not contingent on any information coming from
outside the transcripts themselves. My conclusions from this analysis have
therefore also not changed.
There is plenty of evidence that he was vulnerable in the interview situation
and said things to please the police, but rather less that he was suggestible
to the point of giving consciously self-incriminating admissions. One of the
situations that this analysis cannot cover, however, is the one where Mr
Pendleton's agreeing that he was in the vicinity is actually incriminating but
he does not recognise at the time that such an admission is as incriminating as
it turns out to be and therefore does not react to the risk.
Thank you for keeping me informed about the progress of the case and I look
forward to hearing from you if there is anything else you would like me to
consider."
In oral evidence, Dr Badcock said that the appellant was being very
accommodating at interview. At times he was agreeing without necessarily making
a statement on his own account. There was a limit to the extent he would do
that. When something more incriminating was mentioned, he was not slow to say
in effect "hang on" or "that's not what I said".
Cross-examined, Dr Badcock said that it was to him strange and surprising that
if the appellant had lied to the police during the interviews he did not refer
to that when interviewed by him [Dr Badcock]. Except for one reference at the
end of the interviews, the appellant was very consistent in saying that he was
not directly involved. Dr Badcock said that he had more misgivings about the
last confessions. The statements made after the appellant's visit to the scene
of the crime could be as straightforward as they appeared but Dr Badcock had a
niggle that they did not ring true.
Having given that answer, however, Dr Badcock later stated that the accounts
given by the appellant were not only spontaneous but had an authentic flow to
them, though it was easier to make a judgment in that respect with a taped
record, rather than, as in this case, a contemporaneous note. The accounts
appeared informed, natural and genuine. They did not flow on from what had been
said before but included new information. When the appellant could see
something coming, he was quick to assert himself. Underlining the second
sentence in the second paragraph of the conclusions expressed in January 1999,
Dr Badcock said that the admissions may be more significant in retrospect than
the appellant thought they were at the time. He may have had difficulty in
establishing their forensic relevance. The appellant appeared to deal
straightforwardly with questions and gave answers which were not forensically
expedient but honest.
The Law
By virtue of section 2 of the Criminal Appeal Act 1968, the Court of Appeal
shall allow an appeal against conviction if they think that the conviction is
unsafe and shall dismiss such an appeal in any other case. Mr Mansfield
referred to the citation by this Court in McNamee (Transcript 17
December 1998) of a statement made by Carswell LCJ in the Northern Ireland
Court of Appeal in Clegg (transcript 27 February 1998) in which the
speech of Lord Cross in Stafford and Luvaglio [1974] AC 878 had been
considered. Carswell LCJ stated:
"It [the Court] may conclude that the impact of the fresh evidence upon the
case is not conclusive but is such that, taking all the evidence given both at
trial and on appeal together, it cannot resolve one or more conflicts of fact
or opinion. If it considers that a reasonable tribunal of fact might properly
resolve the conflict in favour of the appellant, and so be left with a
reasonable doubt about his guilt, the Court should then allow the appeal and
quash the conviction, giving consideration to the question whether to order a
new trial."
In McNamee, the Court considered the case to be in that category and
quashed the conviction.
Mr Mansfield also referred to the last paragraph of the judgment of this Court
in O'Brien & Ors (transcript 25 January 2000). Roch LJ stated:
"The evidence both factual and expert which has been placed before us has
satisfied us that this is a case in which such evidence would now be
admissible, and that a jury having heard such evidence may well have reached
different verdicts."
The convictions were quashed.
In Steven Jones [1997] 1 C App R 86, Lord Bingham CJ cited the
judgment of the Court in Callaghan (1989) 88 C App R 40, 47 where the
speech of Viscount Dilhorne in Stafford and Luvaglio was cited. Viscount
Dilhorne had stated:
"Mr Hawser strongly urged that the Court should recognise that reasonable men
can come to different conclusions on the contested issues of fact and that,
although the court came to the conclusion that the fresh evidence raised no
reasonable doubt as to the guilt of the accused, they should nonetheless quash
the conviction if they thought that a jury might reasonably take a different
view. I do not agree. It would, in my opinion, be wrong for the court to say:
`In our view this evidence does not give rise to any reasonable doubt about the
guilt of the accused. We do not ourselves consider that an unsafe or
unsatisfactory verdict was returned but as the jury who heard the case might
conceivably have taken a different view from ours, we quash the conviction' for
Parliament has, in terms, said that the court should only quash a conviction
if, there being no error of law or material irregularity at the trial, `they
think' the verdict was unsafe or unsatisfactory. They have to decide and
Parliament has not required them or given them power to quash a verdict if they
think that a jury might conceivably reach a different conclusion from that to
which they have come. If the Court has no reasonable doubt about the verdict,
it follows that the Court does not think that the jury could have one; and,
conversely, if the Court says that a jury might in the light of the new
evidence have a reasonable doubt, that means that the Court has a reasonable
doubt."
Having cited that passage, Lord Lane CJ in Callaghan, at p 47,
stated:
"Although the court may choose to test its views by asking itself what the
original jury might have concluded, the question which in the end we have to
decide is whether in our judgment, in all the circumstances of the case
including both the verdict of the jury at the trial upon the evidence they
heard and the fresh evidence before this court that we have heard, the
convictions were safe and satisfactory. If so the convictions must stand. If
not the convictions must be quashed."
Having cited that passage from the judgment of Lord Lane CJ, Lord Bingham CJ
stated in Steven Jones (p 94E):
"It seems plain on the language of the statute and on authority that the court
is obliged to exercise its own judgment in deciding whether, in the light of
the new evidence, the conviction is unsafe."
We respectfully adopt that approach.
The Interviews
The Court has considered the lengthy interviews of the appellant by police
officers in the light of the reports and evidence of Professor Gudjonsson and
Dr Badcock. We consider whether doubt is cast upon the credibility of
admissions of presence at the scene when the crime was committed. We consider
the question in the light of Professor Gudjonsson's assessment of the
appellant's personality. The question is whether the admissions are credible.
Submissions
In addressing the Court upon the detail in the interviews, Mr Mansfield
submitted that at times even the police appeared to be in consternation about
their difficulty in getting explanations. The previous murder inquiry and the
treatment the appellant said he had received in 1980, when detained for a
driving offence, had given the appellant an obsessive fear of the police. Some
of the questioning had put the appellant under extreme pressure. Because it had
been mislaid, the appellant was not alerted to the contents of his 1971
statement, though he was told that he had made one at that time. At one point
in the interviews (p 38) the appellant told the officers that they were trying
to put ideas in his head. His "moaning and wailing" (p 40) demonstrate the
pressure under which he felt himself to be. The appellant's statements as to
how he met Thorpe are inconsistent with the account given by Thorpe. The
appellant's frequent reference to "the steps", when there were no steps at the
scene of the crime, demonstrated the unreliability of his account, though
eventually he said he was wrong about the steps and was "getting mixed up".
Mr Mansfield also refers to the repeated use by the appellant of the device,
when reference was made to a statement by another party, of saying "if he says
so it must be right". Reliance is placed upon the upset felt and expressed by
the appellant at being questioned when he had previously been questioned for
very many hours in another case. Professor Gudjonsson, in his analysis of the
interviews, says that by presenting the appellant with the strength of their
case, the police were placing him under pressure to make self-incriminating
admissions. On one occasion, the appellant asked to be left alone when, in the
opinion of Professor Gudjonsson, the officer kept pressuring him.
Inconsistencies between the account given by the appellant and that given by
Sharpe are also relied on. If Sharpe's account is accurate, the appellant's
account in interview of the watch and money belt are not.
In his analysis of the interviews, Mr Waters submits that the police were
careful to restrict their suggestions wherever possible. In the course of the
interviews there were spontaneous replies from the appellant which provide
considerable detail which cannot have been prompted by the police. The detail
as to the kicking and the victim rolling down the embankment came from the
appellant and was consistent with the medical evidence from post-mortem
examination. The appellant's statement "I seem to recall the guy having a piss
when Thorpie kicked him" is consistent with the position of the victim's jeans
when the body was found (flies partly open but with jeans pulled up). The
appellant's reference to and impression about "the steps" was not surprising
having regard to the topography and the passage of time.
We do not accept that the appellant was put under unfair pressure by the
interviewing officers. From the opening remark of Detective Inspector King
onwards the interviews were conducted fairly. DI King began by stating:
"As you heard me say at the charge desk, Don this murder was committed 14 years
ago, I've no doubt that it's been quite a shock for you to be arrested for
something so long ago in the past. I don't propose at this stage to ask you any
questions because I don't think it would be fair to you. What I will say is
that we're acting on some information that has come to us quite recently. We
consider it is accurate information and it puts you at the scene of the
murder."
The persistence in questions about "the steps" was understandable and fair to
the appellant. An interview was terminated when the "moaning and wailing"
occurred. The appellant spoke convincingly of his fear of Thorpe and his
reluctance to inform on him (p 51).
At the first interview on 24 March, the opening conversation was:
"QDI OK Donald you've had a night to sleep on this. Have you thought of
anything else you should be telling us about?
R. I haven't slept.
QDI That's understandable but you should try to get some sleep.
R. Every time I close my eyes all I see is Thorpe and Ingleby Road
and it all comes back."
Reference is made to the fact that the nearest the appellant came to a full
confession was the statement in the presence of his solicitor on 25 March at
8.15 pm (p 99). No solicitor had been present at the earlier interviews. Having
been asked if there was anything to say before he was charged, he replied: "No,
except these two fellows have been fair with me". DI King then explained that
he had outlined the circumstances of the case to the appellant's solicitor "and
in particular the fact that Pendleton was blaming Thorpe and vice versa, Thorpe
was blaming Pendleton". The appellant replied:
"Yeah, it's just vice versa, I'm not just 100% sure whether I hit him or
not".
The manner in which the officers put to the appellant the information they had
was fair. There were breaks when he became upset or distraught. The appellant
reacted badly to the mention of Thorpe's name, saying:
"Go on then you've got what you want now. I admit it. I kicked his fucking head
in are you satisfied now that's what you wanted isn't it."
The officer replied by saying:
"Just calm down Don. No that isn't it. That's not what we want. We want the
truth."
Soon afterwards there was a short break in the interview to allow the appellant
to regain his composure. It was then that he gave a detailed account of events,
an account which had in no way been suggested to him by the police officers.
"DS Light: Down the corridor there you just said to me that you had calmed
down and wanted to try sort this out. You told me you had remembered about that
night a bit more clearly. Will you tell me again with Mr King here?
R. I remember clearly I was on these steps like. I was about half way up.
Thorps went right up I don't know if he was going to mug him or just bray him.
I waited. I just sat down. He came running back down the steps, fast as he
could. He shouted something like `Come on, let's fuck off.' I said, `What's
happened' or something but he didn't say and we both ran off. We ran a fair
way, then stopped and walked. He said he'd given him a right hiding or gone too
far or something like that.
Q. DSL Who was he talking about?
R. I didn't see anybody else but it must have been Nobby.
Q. DSL Had Thorpe got anything with him?
R. I can't remember honestly I'm trying to remember what he got and I can't be
sure. He might have got some money because we were both skint and he bought me
a cup of tea and he played on the fruit machine at that cafe.
Q. DI. Which cafe?
R. When we stopped running, we walked up Girlington to that cafe that used to
open all night. I think they called it Hideaway. When we got there he bought
two cups of tea and went to play on fruit machine. He talked to somebody and I
sat down and talked to somebody else.
Q. DS Who?
R. I can't remember, I can't remember for sure that he got money, but I think
he got his wallet with some money.
Q DSL. You seem to remember very clearly this bit about going in the cafe,
getting the cups of tea and playing the machine. Try going over the incident
earlier again.
R. That's what I'm saying. I can't remember it all. I know I didn't mug Nobby.
I was sat on the steps. Thorpe went up to do it. He's like that he does
everything right fast. He shot up and then came running back out of breath and
said `Let's fuck off.'
Q DSL What did you think he was going to do when the went up the steps?
R. I didn't know if he was going to bray him or rob him. He was like that,
he'd just bray somebody for no reason.
Q DSL. Did you know Nobby Clark was there?
R. I've known Nobby Clark for years from town.
Q DSL. Yes but when Thorps went up the steps and you decided to wait, who did
you think Thorpe was going to see?
R. I didn't know. I didn't know who it was and I didn't know what he was going
to do with him, but when he came flying back I knew he'd gone too far because
of the way he said `let's fuck off'.
QDI Did you see anybody else.
R. No I never saw anyone. I just saw him go up the steps and then run back. He
said he'd give him a right hiding or gone too far or something like that. He
was like that he'd just bray somebody for nothing and then brag about it.
QDI Are you sure you took no part.
R. No I'd never do owt like that."
Shortly afterwards, the appellant gave a narrative account of events which was
recorded in writing. On the following day, the appellant wrote an account of
events in his own hand. That was followed by a further detailed account in
interviews of the events at the scene of the crime. It included a detailed
account of a meeting with Sharpe though Sharpe's name had first been mentioned
by the police officers. When asked about why he did not come forward when he
read in the newspaper of Clark's death he said: "Cos I was frightened of the
outcome, with me being sorta with him. Plus I'd have had my head kicked for
grassing". We have considered the entire record. It is unnecessary, and it
would be inappropriate, to set out in full in this judgment, the lengthy
interviews given and the written statements made by the appellant.
Dr Fieldhouse
On 24 March 1985, the appellant was examined by another doctor, Dr D C
Fieldhouse. Dr Fieldhouse, who is not a psychiatrist, expressed the opinion
that the "shivering, shaking, wailing and claims of memory loss were almost
certainly part of an act which he produced to avoid answering questions". Dr
Fieldhouse was asked to assess the appellant's "physical and mental states". He
had the advantage, not enjoyed by the other experts, of examining the appellant
at the time of the interviews which are now challenged. We do not attach
significance to Dr Fieldhouse's opinion as expressed above, and it may have
been beyond Dr Fieldhouse's brief to express it. We do however note one answer
which the appellant gave to Dr Fieldhouse:
"He said that he had lost his memory for much of the past and that whenever he
went back to his cell all he could do was remember and think about the events
of `Ingleby Road' and `Thorpie'".
That statement, including the use of the word "remember", is hardly consistent
with a man who had been pressured by the police into making false admissions
about events.
Appellant's proof of evidence for trial
The Court has been supplied with the proof of evidence which the appellant
gave for the purposes of the trial. It includes a firm denial of guilt and of
presence at the scene of the crime. The appellant said that his voluntary
statement was "totally incorrect". He added:
"It can therefore be appreciated that it came as a terrible shock to be
arrested on the morning Saturday 23rd March 1985 and taken to the Police
Headquarters, Bradford, on suspicion of Murder. I was so upset and distressed
that I could not stop shaking. I was questioned repeatedly about the murder and
initially I denied any knowledge. However I was disbelieved by the police
officers and put under constant pressure. After a while I was so bad that I was
prepared to say anything in order to `get the police off my back' The
interviewing officers kept painting a picture of what they said had happened
and implicated Thorpe. When I came to make the statement I tried to recite what
the police had said, albeit it was a complete pack of lies. However, it enabled
me to at least calm down but I have since regretted making the statement
because it is inaccurate".
Both the expression "constant pressure" and the statement that the appellant
"tried to recite what the police had said" we regard as inconsistent with an
interview record the accuracy of which is not challenged and which we have
considered in detail with the help of counsels' submissions.
Other alleged inconsistencies
Account to wife
Reliance is placed on the inconsistency between the appellant saying more
than once in interview that in 1971 he had told his wife about the incident and
her evidence, when questioned in 1985, that he did not tell her. She said that
"Nothing specific comes to mind about Donald's behaviour or anything he said at
the time". We find nothing surprising about that inconsistency in the context
of those interviews. When interviewed in 1985, he plainly had an interest in
attempting to give credibility to his account of non-participation in the
attack by saying that told his wife about Thorpe's attack. He must also have
been well aware that by reason of the lapse of time his wife would be unlikely
to have a clear recollection.
The watch and money belt
The evidence about those objects was confusing and there were inconsistencies.
The watch was never found, the empty money bag was found near Clark's body. An
expandable watch strap was also found in the beck. The appellant said in
interview that he knew nothing about the money belt and that he and Thorpe had
tried to sell the watch. Sharpe claimed that reference was made to the money
belt in his presence.
We do not consider that the inconsistencies throw significant light on the
central question whether the appellant's accounts in interview of being at the
scene of the crime were reliable. It is not at all surprising that
recollections differ, or that memory as to detail fades. The appellant's
statement that he could not remember "owt about a money belt", when asked about
it, far from supports the case that he was ready to adopt suggestions put to
him.
Conclusions on interviews
Professor Gudjonsson's evidence that the appellant was vulnerable in the
manner described is unchallenged but the Court must make an assessment whether
that vulnerability did, or may have, led the appellant, in the interview and
statements given, to have made false admissions. Professor Gudjonsson could not
definitively answer that question, as he frankly and fairly admitted. He
expressed his open-mindedness as to whether the accounts given were true or
were mere guesswork. Dr Badcock's "niggle" about the truth of the appellant's
accounts was narrowly expressed and followed by evidence that the appellant's
accounts appeared informed, natural and genuine. We bear in mind Professor
Gudjonsson's analysis, and that of Dr Badcock, along with submissions made by
counsel on each side and the other material.
Given the contents of the appellant's statements to the police, and the manner
in which they were elicited, we have no doubt as to the reliability of the
admissions made by the appellant as to his presence at the scene of the murder.
None of the vulnerabilities described by Professor Gudjonsson can, upon a
consideration of the interviews as a whole, put a flavour of falsity upon the
admissions made. We find it inconceivable that his accounts were imagined or
invented. Unless there is material, extraneous to the interviews and the issues
surrounding them, which otherwise cast doubt upon the admissions, they provide
a sound and sufficient basis for the safety of the conviction. Moreover upon
being satisfied as to the appellant's presence, the jury were entitled to
convict him and it was not and could not reasonably be argued otherwise either
in 1985 or now.
Other material
We go on to consider other material in support of the case against the
appellant and in particular his presence at the scene. It is sought to cast
doubt upon the value of the other evidence. To demonstrate that it is of less
value does not by itself cast doubt upon the safety of a conviction soundly
based on reliable admissions of guilt. We scrutinise the additional material to
consider not only its significance as supporting evidence but also whether it
may cast doubt, from an outside source, upon the reliability of the appellant's
admissions. It is also submitted that Sharpe may himself have played some part
in the murder of Clark.
Gordon Sharpe
We have noted that it was Sharpe's approach to the police which led to the
re-opening of the murder investigation and the questioning of the appellant and
Thorpe. Sharpe's evidence at the trial was that he was in Ingleby Road and had
overheard the appellant and Thorpe. One said "What shall we do if anyone
comes?" and the other replied "We'll beat their fucking heads in". Sharpe said
he was grabbed by Thorpe. He indicated that he was out burgling like them. The
appellant said it was much more serious than that and he would be reading about
it in the papers. Sharpe was asked where his brick was and Thorpe wanted to put
the brick over Sharpe's head. Thorpe, who was agitated, took Sharpe's UB 40
card. He asked the appellant if he had the watch and the appellant asked Thorpe
if he had the belt. One of them said that they would bury the belt with
Sharpe's card to implicate him. The UB 40 card was later returned to Sharpe by
a third party, Taylor. Sharpe had not said anything at the time because he was
fearful of repercussions. He met Thorpe in prison in 1983 and Thorpe needled
him about keeping his mouth shut. That caused Sharpe to remember the
incident.
On behalf of the appellant, reliance is placed on further statements made by
Sharpe when interviewed by the Commission. It emerged that Sharpe believed that
the appellant had once attacked his father and that he had a grudge against the
appellant. It emerged that Sharpe had a history of mental instability and had
had psychiatric treatment. Sharpe's antecedent history demonstrated, it is
submitted, that he is dangerous, unpredictable and dishonest. His earlier
statement that he had forgotten about the incident until meeting Thorpe was
untrue in that it emerged that he had vivid, continuing and disturbing memories
of the incident, strongly suggestive of his having played some part in it
himself. Sharpe was cross-examined at the trial about his previous convictions
but further evidence of his bad character is now available. He has a very bad
record, including convictions for robbery. His criminal conduct has continued,
culminating in a conviction for attempted murder in 1999. Had the further
material been available and had the appellant's case been that he was not at
the scene of the murder, Sharpe could, it is submitted, have been
cross-examined more effectively.
The "grudge" material arose from a Commission interview:
"Suggestion put to Sharpe that he may have had a grudge against Pendleton due
to the alleged thrashing he had had from Pendleton as a result of the above
assault -- he denied this saying he had never had a fight with Pendleton.
Sharpe stated that his father had once been pushed through a window and he
believed that Thorpe and Pendleton were responsible".
Sharpe's father was charged with being drunk and disorderly.
As to mental instability, the Commission's record of interview included this
passage:
"I remember I was taken in a taxi to where Pendleton was living. Little Cross
Street. About six months after it had happened. I was taken to this drugs
party, we had all sorts, LSD soup -- when I went into the house I had a coat
over my head. They were crazy. Pendleton was part of a gang `The Sons of
Satan'. They were weird doing things like reciting the Lord's prayer backwards
whilst looking into a mirror by candlelight. All these satanic rituals were
going on. It really freaked me. I went to get psychiatric treatment. I was
diagnosed as a paranoid schizophrenic, which was a pretty normal diagnosis at
that time, if you were known to be a drug user".
Sharpe has understandably been questioned in detail as to why he said he had
forgotten about the incident and as to why he came forward so many years later.
In his statement of 18 February 1985, he stated:
"The reason why I did not say anything immediately after the murder was that I
was frightened of repercussions on myself and family by the members of the gang
that Thorpe and Pendleton associated with."
He also stated, in relation to the time of the conversation with Thorpe in
1983:
"The experience with Thorpe brought the memory of the murder back. I had
forgotten all about it, this was due to the fact that following this I had been
heavily involved in drugs through both Don Pendleton and Carl Taylor."
In the statement of 15 February 1985, Sharpe stated:
"I did not realise what Thorpe was on about at the time but when I was in my
cell later that day I got to thinking what Thorpe had said. I then realised he
[Thorpe] had been referring to the murder of Nobby Clark."
It was many months later that Sharpe first spoke to DS Cheshire. He stated
that "It had been on my mind. The whole thing troubled me. I'd talked to a
priest. At the end of the day it flooded out it was a relief".
A statement was also taken from Sharpe's father, Mr Samuel Sharpe. He
stated:
"The next time he spoke about this was about six months ago (September/October
1984) when Gordon visited us after being released from prison. It was obviously
preying on his mind. I asked him what was the matter and he told me the full
story. He told me about the night Nobby Clark was murdered."
Sharpe also told his father about the form UB 40 being taken. The prosecution
make the point that the reference to the UB 40 being taken by Thorpe near the
scene of the murder, if a lie, was a remarkably sophisticated lie because his
obtaining a duplicate card and his claiming to have received the original card
back from Carl Taylor in the Gondola cafe was liable to be disproved if untrue.
When questioned 14 years later, Taylor could not remember the incident but
stated "All I can say is that I would have been in the Gondola coffee bar that
morning or afternoon, if Don had given it to me I would have given it to
Gordon. It is the type of thing I would do, this is 14 years ago and I just
can't remember".
The prosecution also make the point that if Sharpe wished falsely to implicate
the appellant in the killing, he could have done so in much clearer terms. He
did not claim to have seen Clark or to have seen the appellant at the precise
scene of the crime. If he had been involved in the murder, it is surprising
that he came forward at all. The incident between the appellant and Thorpe and
Sharpe's father does not begin to explain the concoction of a false story.
In his advice, leading counsel Mr S W Williamson acknowledges the importance
of Sharpe's evidence as putting Pendleton at the scene. Sharpe's evidence had
to be viewed with caution and the judge gave a suitable warning to the jury.
They were aware of his previous convictions and he was cross-examined
accordingly. Sharpe's account must still be viewed with caution. The further
enquiries, however, far from supporting any suggestion of a false account,
provide a fuller explanation of why he came forward as he did. We do not
consider it possible that a jury would have viewed his evidence, as to the
appellant's presence at the scene, differently had the further material been
available to them. In the circumstances, neither the alleged grudge nor the
statement that he had forgotten are likely to have been treated as significant
given the circumstances as a whole. What is more, there is nothing in the fresh
material involving Sharpe which casts any doubts upon the reliability of the
admissions the appellant himself made.
Barry Gallimore
Reliance is placed on the fact that it has emerged that Gallimore was told by
police officers that they would provide him with a letter for the purposes of
mitigation indicating the assistance he had provided by giving evidence in this
case. Gallimore made two statements on 7 June 1985. A day later he was granted
bail for offences of conspiracy to utter counterfeit currency and conspiracy to
defraud. In the first statement he said that he shared a cell with the
appellant and Thorpe and that they had each admitted presence at the scene of
the attack on Clark. Thorpe had stated that he, and not the appellant was
responsible for the attack. In the second statement, he said that the appellant
had made arrangement that a fellow prisoner Pemberton would give evidence
discrediting Sharpe. Pemberton's statement was available at trial and Mr
Wilkinson, in his advice, refers to the dangers involved in calling him. It is
now known that Pemberton told Gallimore that it was a "put up job".
The appellant's instructions at trial were that Gallimore was untruthful in
both statements. Gallimore's credibility as a witness, it is submitted, could
have been undermined had it been known that he may have been influenced in
making his statements by the prospect of gaining personal advantage.
Gallimore had numerous convictions for dishonesty. On the defence run at
trial, his evidence was helpful to the appellant. As noted by the DPP's
representative at trial, Gallimore said "I felt I could give valuable evidence
to acquit one man -- Pendleton, from my assumption that Pendleton was not
guilty". That being his assumption, it is extremely difficult to find as a real
possibility that, in hope of gaining personal advantage, Gallimore made a false
statement as to what the appellant had said to him while they were in custody.
There is no evidence that Gallimore was in contact with Sharpe. It is
significant, as the prosecution point out, that Gallimore, like Sharpe, says
that he was told that the victim was "having a piss". The two witnesses are
consistent with each other, as well as with the appellant's account in
interview.
Fresh evidence to support a defence of alibi
A statement made to the police by the appellant on 19 June 1971 was not
available at the trial and is available now. The same applied to statements of
Mr John Davis. It is submitted that the absence of such material at the trial
seriously prejudiced the presentation of the appellant's case. Had it been
available, a defence of alibi, which accorded with the appellant's
instructions, might have been run.
In his statement of 19 June 1971, the appellant said that:
"I honestly cannot remember what I was doing. I think I went to the rink [the
ice rink] with a Geordie lad called John Davis, he is a half-caste or something
like that. I can't remember what time it was, anyway I got into the rink for
nothing. John couldn't get in so he had to stay outside. I never saw John again
that night, and I have no idea where he went to."
After referring to "a lad called Danny Smith", the appellant continued:
"I think I might have got home about twenty past eleven. My wife would be in
and she would verify the time I arrived home. John Davis did not stay at my
home that night. He had stayed there for about a week prior to this Wednesday
but my wife had wanted him to leave. That night I was never anywhere near
Ingleby Road."
In his statements in 1971, Davis, then aged 15 years, said that he spent the
night of 2/3 June 1971 at the appellant's house, with the appellant, and stayed
there until 12.30 pm on 3 June. In a fuller statement given on 23 March 1985,
Davis said that he had absconded from a local authority home in Newcastle. He
confirmed that he had stayed at the appellant's house on the night he was being
asked about during the earlier interview. It was the first time he had stayed
there. It stuck in his mind because of an argument the following morning in
which the appellant's wife had told the appellant not to bring Davis there
again. The investigating officer in 1971 concluded that both the appellant and
Davis were genuinely confused about their movements on the night in question
and were not deliberately being evasive.
The police failed to trace Danny Smith. The appellant's wife could not
remember if the appellant had come home that night. His marriage was in
difficulties at the time and he often stayed the night at another address, 7
Wellbury Drive. One of the occupants of 7 Wellbury Drive was able to remember
the night in question. It was the day after his birthday. He had no memory of
the appellant being there. The police searched the appellant's home address and
his clothing, with negative results. The appellant was "very vague as to his
movements".
We find the submission that the fresh material could have formed the basis for
a successful alibi defence to be without weight. In his contemporaneous
statement, the appellant said he "Never saw John again that night". He said
that Davis had stayed at his home but it was prior to the night in question.
His wife had wanted Davis to leave. Both the appellant and Davis say that there
was an occasion when Davis did stay and that it was followed by an argument
involving the appellant's wife. The appellant's own contemporaneous statement
is in stark contrast with Davis's statement that the occasion was on the night
in question. Moreover, the appellant's wife told a police officer that Davis
had not stayed that night. When he made his first statement, Davis, as an
offender on the run, had a motive for seeking an alibi of his own, and a stay
at the appellant's house might have appeared to provide one. In the
circumstances, his evidence as alibi evidence is most unpromising.
We do not consider that the fact that the appellant was eliminated as a
possible suspect in 1971 can have any bearing upon the issues now before the
Court. All it establishes is at that at that time no evidence against him had
come to light. It is right to say that the defence did not have the opportunity
in 1971 or 1985 to pursue Danny Smith. In the context of the case as a whole,
that lost opportunity cannot be considered significant.
We do not find substance in the suggestion that the additional material might
have provided a successful alibi defence or has any impact upon the safety of
the verdict.
Alternative suspects for the crime
Since the trial, previously undisclosed statements have become available. On 6
June 1971 a witness made a statement that on 29 May 1971 he had seen the
deceased in Bradford town centre with a bleeding nose and mouth. Three men
walked past and one said: "That's for snitching and you'll get some more". A
fourteen year old schoolboy said in a statement of 5 June 1971 that on the
afternoon of the day of the murder he saw the deceased arguing with another
man, who could not have been the appellant. The man said to the deceased: "If
you do that again I'll have you".
Under the heading of "Overall unfairness of the trial", reference is also made
on behalf of the appellant to a suspect WH who was questioned by the police.
Material about him was available at the trial. The police concluded, by letter
dated 29 July 1971, that there was nothing more than suspicion against WH.
There was no sufficient evidence to justify charging him with murder.
We do not consider it possible, in the circumstances of this murder of a news
vendor well known on the streets of Bradford, where extensive enquiries were
likely to be and were in fact made, that there is a real possibility that
introducing material such as this could have had any effect upon the verdict of
the jury. A clear motive was present and that was robbery, probably unplanned.
The evidence against the appellant was the determining factor. The fact that
the police followed other lines of enquiry does not in the circumstances of
this case create any doubt as to the safety of the verdict.
Conclusion
A feature of the present appeal is the fact that the appellant wants the
strength of the case against him assessed on the basis of a defence which he
did not, but could have, put forward at the trial. Since his account that he
was not present at the scene of the murder has been consistent, albeit not put
forward at the trial, he is entitled to do that. The Court must assess the
evidence at the trial, and the further material which has since become
available, on the basis of his case that not only did the appellant not
participate in the attack on Clark but that he was not present at the scene. We
bear in mind the lapse of time between the murder and the trial. In our
judgment there is no basis upon which an abuse of process submission could have
succeeded at the trial, either on the law as it was in 1985 or as it is now,
and making full allowance for subsequent events.
We assess the reliability of the admissions made in interview on their own
merits and also having regard to the additional material. If, notwithstanding a
provisional view as to their reliability, there was additional extraneous
material which cast doubt on their reliability, that could affect the safety of
the verdict. Nothing in the additional material, in our judgment, casts doubt
upon the admissions made. Moreover, while the interviews of Thorpe are not
evidence against the appellant, and the judge directed the jury that his oral
evidence was not evidence against him either, we would accept that there could
be material emanating from him which, while not evidence against the appellant,
could be used in his favour to cast doubt upon the reliability of his
admissions. There is some doubt as to the circumstances in which the appellant
and Thorpe met on 2 June 1971. That is not surprising and does not create a
doubt about the reliability of admissions or as to what occurred when they had
met. There is nothing in the material emanating from Thorpe which supports a
submission that the appellant's admissions were unreliable.
The reliability of the appellant's admissions in interview are, in the present
context, sufficient to ensure the safety of the verdict against him. Not only
does the material canvassed at the trial and the additional material canvassed
upon the hearing of this appeal fail to cast doubt upon the reliability of the
admissions, it provides other substantial evidence of the guilt of the
appellant. Notwithstanding thorough investigation on behalf of the appellant,
there is in our judgment substantial additional evidence of his guilt in the
evidence of Sharpe and Gallimore. We approach the case upon the basis of the
law laid down in Stafford and Luvaglio, Callaghan and Steven
Jones. We have no doubt that the conviction was safe. We add that if
Carswell LCJ, in Clegg, had in mind a different test , which we doubt,
we do not consider that a reasonable tribunal of fact might in the present case
properly be left with a reasonable doubt about the safety of the conviction.
© 2000 Crown Copyright
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