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You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Magee, R v. [2001] NICA 18 (6 April 2001) URL: http://www.bailii.org/nie/cases/NICA/2000/18.html Cite as: [2001] NICA 18, [2001] 1 NI 217, [2001] 4 BNIL 15 |
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1. The appellant Michael Gerard Magee was convicted on 21
December 1990 by Murray LJ sitting without a jury at Belfast Crown Court of a
number of serious terrorist crimes, including conspiracy to murder, conspiracy
to cause an explosion, possession of explosive substances and belonging to a
proscribed organisation. The evidence against him consisted solely of oral
admissions and a written statement made by him during police questioning in
Castlereagh Police Office (Castlereagh), in which he made a comprehensive
confession of the crimes with which he was charged. At the trial he contested
the admissibility of the statement, claiming that he had suffered substantial
physical ill-treatment from two of the interviewing detectives. The trial judge
after a long voir dire rejected all of his allegations, finding that he
was satisfied beyond reasonable doubt that the appellant had not been
ill-treated and that the allegations were fabricated by him. He was sentenced to
concurrent terms of imprisonment, which amounted to an effective sentence of
twenty years.
2. The appellant appealed to the Court of Appeal, which
examined in detail the evidence and his allegations. In a written judgment
delivered on 16 June 1993 the Court of Appeal dismissed the appeal, being
satisfied that the appellant had not been ill-treated and that his conviction
was neither unsafe nor unsatisfactory.
3. The appellant corresponded with the Northern Ireland
Office about his conviction, and when the Criminal Cases Review Commission was
set up the papers were referred to it for consideration. Meanwhile he instituted
proceedings before the European Court of Human Rights (ECHR), claiming that his
treatment in Castlereagh had given rise to breaches of the European Convention
on Human Rights (the Convention). The ECHR held in a written decision given on 6
June 2000, that in the circumstances of his detention in Castlereagh there had
been a violation of Article 6(1) of the Convention, in conjunction with Article
6(3)(c) as regards the denial of access to a solicitor. The Criminal Cases
Review Commission then on 25 July 2000 referred the case to this court
under section 10
of the Criminal
Appeal Act 1995. Pursuant to section
10(2) of that Act the court is to treat the reference as an appeal.
4. On the morning of 15 December 1988 police discovered a
large bomb hidden in a culvert under a road near Antrim. It was designed to be
triggered by a signal from a radio transmitter. A party of soldiers had been due
to pass over the culvert in a bus shortly after the time at which the bomb was
found. A number of persons was arrested in connection with the incident, and a
total of eleven were charged with terrorist offences, of whom seven pleaded
guilty. The Crown case was that the bomb was assembled at a farm near Lough
Neagh at 36 Blackrock Road, Randalstown, and transported from there to the
culvert in a green Datsun car. There was considerable forensic evidence
concerning traces of Semtex found in that car and another car, a Vauxhall Astra,
found in the yard of 36 Blackrock Road, and in the farmhouse and on items found
therein. There was also evidence linking several defendants with the farmhouse.
5. The appellant was arrested in the early morning of 16
December 1988 and taken to Castlereagh. Between then and 18 December he was
interviewed on ten occasions by two pairs of detectives. In the sixth interview,
on the morning of 17 December, he made a number of verbal admissions in
reply to questions, and in the seventh interview, which commenced at 2 pm on
that day, he made a written statement of admission. The case against him was
founded on the admissions made in these two interviews.
6. On arrival at Castlereagh the appellant was asked if he
wanted to have a solicitor’s advice and he said that he did, and gave the
officer who carried out the admission procedure the name of his solicitor. An
instruction was, however, given by a senior officer, pursuant to the terms of
section 15 of the Northern Ireland (Emergency Provisions) Act 1987, authorising
forty eight hours’ delay in the appellant’s access to legal advice. It was not
challenged that the officer was entitled to give this authorisation, which had
to be grounded on one or more of the reasons set out in section 15(8).
7. The appellant then had a medical examination, at which
the doctor found him in good health. There followed ten interviews, which were
held at the following times by the following officers:
18. The appellant claimed at his trial that he had been ill-treated by two of the interviewing officers, Detective Constable Molloy and Detective Constable McCulough. He gave detailed evidence of a catalogue of complaints about physical ill-treatment and verbal abuse which, if accepted, by the trial judge, would certainly have caused him to refuse to admit the confession. The judge rejected his allegations. He examined in detail all the evidence, from the appellant, the interviewing officers, the gaolers and the medical officers who had examined him on several occasions. At the conclusion of his consideration he held that he was satisfied beyond reasonable doubt that the appellant’s complaints were a fabrication and that he had not been ill treated in any respect. When the case went on appeal to the Court of Appeal the court again examined all of the material evidence in detail and came to the same conclusion as the trial judge. The evidence relating to the course of the interviews has now to be read in the light of these findings.
19. At the commencement of the first interview and
regularly thereafter the appellant was cautioned in accordance with the terms of
Article 3 of the Criminal Evidence (Northern Ireland) Order 1988.
Paragraphs (1) and (2) of Article 3 provide:
20. During the first four interviews the appellant
remained silent and did not answer any question put to him. The detectives
stated in evidence that he appeared extremely nervous, breathing heavily and
sweating profusely. Towards the end of the fifth interview he did break his
silence. According to the interviewing officers the questions and answers took
the following course:
21. The appellant denied that this account was accurate,
claiming that his first remark was to ask “When will I be seeing my solicitor?”
and denying that he asked for time to think. He said in evidence that he wanted
to see his solicitor for two reasons: first, because he claimed that he was
being ill-treated, and secondly, to obtain advice about the caution which had
been administered to him.
22. The following morning he was visited by the doctor, to
whom he made a complaint of ill-treatment by the interviewing officers during
the second and third interviews. The doctor made some findings, which he
described as “subjective”, of tenderness on movement and palpation. He said in
evidence that there were no objective findings.
23. The appellant claimed that in the sixth interview,
which commenced at 9.30 am on 17 December, he was assaulted to an even
greater extent than on the previous day and that he was so worn down and
intimidated by the ill-treatment and threats from the detectives that to obtain
respite he responded to their questions with answers which he thought would
satisfy them. He claimed that the answers which he gave were untrue and
consisted of information garnered from the detectives’ own previous questions.
The police evidence was to the effect that he was responding freely and
voluntarily to their questioning, giving answers in which he admitted his
involvement in the preparation and transportation of the bomb. The appellant
stated in evidence that when he was returned to his cell at lunch time after the
conclusion of that interview he was very depressed, because, as he said:
24. In the seventh interview, which commenced at 2 pm on 17 December, the appellant made a written statement in which he set out in detail his part in the affair. He claimed at trial that this statement was “structured” by the police, that is, that they put it together and attributed the contents to him. The trial judge rejected this allegation, as did the Court of Appeal. The statement read as follows:
25. The appellant was interviewed again in the evening of
17 December and twice more on 18 December. He was seen by medical examiners in
the morning of 18 December and again when he left Castlereagh that evening.
He did not make any further allegations of ill-treatment and neither examiner
found any evidence of injuries. His solicitor saw him in private consultation at
1 pm on 18 December, the day after he made the verbal admissions and the written
statement.
26. The interviews were monitored by closed circuit
television, but it was proved that for a period on the morning of 17 December
the duty inspector whose duty it was to watch the monitoring screens was out of
the monitoring office on other duties. The judge held that this absence did not
occur during the part of the sixth interview in which the appellant claimed to
have been ill-treated. He was moreover of the opinion that it would have been
impossible for the prolonged ill-treatment described by the appellant to have
taken place without being observed at some time by the inspectors on duty in the
monitoring room. He accepted their evidence that they had seen nothing of the
kind at any stage.
27. The appellant’s challenge to the admission of these
verbal and written admissions was based primarily on section 8(2) of the
Northern Ireland (Emergency Provisions) Act 1978, as substituted by section
5 of the 1987 Act, which read:
28. The judge held that he was satisfied beyond reasonable
doubt that the statements had not been obtained by so subjecting the appellant.
The appellant also relied on section 8(3), which, as amended, provided:
29. The ground on which the appellant’s counsel asked the
trial judge to exercise his discretion under section 8(3) was because ESDA tests
showed that some of the interview notes had been altered or rewritten and
because they had not all been authenticated in the prescribed manner by a senior
officer. The judge held that the ESDA evidence threw no doubt on the
authenticity of the notes and that the failure to authenticate them properly was
no more than incompetence or slapdash procedure, and that it did not reflect on
the authenticity of the notes. He therefore declined to exercise his discretion
under section 8(3) to exclude any of the appellant’s statements. The Court of
Appeal held that he was entitled to reach the conclusions which he formed and to
decline to exercise his discretion to exclude the statements. It accordingly
held that the appellant’s conviction was neither unsafe nor unsatisfactory and
dismissed his appeal.
30. When the appellant’s application came before the ECHR
the issue was whether there had been a breach of Article 6 or Article 14 of the
Convention. The Court ruled that there had not been a breach of Article 14, and
we need not consider it. Article 6(1) provides, so far as material:
31. Article 6(3)(c) goes on to provide that everyone
charged with a criminal offence shall have the right to defend himself in person
or through legal assistance of his own choosing. As the Court pointed out in
paragraph 41 of its decision, it has been held that these provisions may apply
to pre-trial stages as well as to the actual hearing.
32. The Court decided to deal with it on the papers before it and not to hold a hearing on the merits. It received in evidence before it a report from the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment (CPT) dated July 1993 concerning conditions which it then found to exist in Castlereagh. The CPT was strongly critical of those conditions. The matters which gave it especial concern were the lack of natural light in the detainees’ cells, the lack of natural light in one block of interview rooms (not that in which the appellant was interviewed) and the lack of exercise facilities. On the basis of these facts the CPT expressed the following conclusion in paragraph 109 of its report:
33. The Court, after recording the submissions of the
parties, expressed its conclusions in paragraphs 38 to 46 of its decision:
34. Following the decision of the ECHR, the Criminal Cases
Review Commission gave further consideration to the appellant’s case. It
concluded that there was a real possibility that this court would find that,
taking into account the nature and extent of the breach of Article 6, the
evidence of confession should have been excluded as a matter of discretion. It
accordingly referred the conviction to us under section 10
of the Criminal
Appeal Act 1995.
35. Under section 2(1) of the Criminal Appeal (Northern
Ireland) Act 1980, as amended by the Criminal Appeal Act
1995, the Court of Appeal is to allow an appeal against conviction if they
think it was unsafe, and dismiss the appeal in any other case. In this reference
we have to consider the effect of the argument now put before us, which was not
advanced to the trial judge, that he should have exercised his discretion to
refuse to admit the statements made by the appellant on the ground that it was
unfair in all the circumstances of the case, and taking into account the
atmosphere of Castlereagh, to decline to allow him access to legal advice for
the period of forty eight hours after his arrest. Such an argument could not
have succeeded if made at the time of the appellant’s trial in 1990 or his
appeal to this court in 1993. Parliament had by enacting section 15 of the
Northern Ireland (Emergency Provisions) Act 1978 and its successor section 45 of
the 1991 Act specifically authorised the deferment of access to legal advice in
certain circumstances for a maximum period of time. The courts therefore could
not interpret section 8(3) of the 1978 Act or its successor as giving authority
to exclude a statement made by the person detained, which would have defeated
the will of Parliament: see Re Russell’s Application [1996] NI 310 at 323
and 336, per Hutton LCJ. Since the trial judge was not asked to exercise his
discretion to exclude the statements on the ground of denial of access to legal
advice, this court as an appellate tribunal has now to exercise the discretion
conferred on him: see, eg, R v Docherty [1999] 1 Cr App R 274
at 281. If the law applying in 1990 had remained unchanged to the present time,
we should be bound to reach the same conclusion that we could not exclude the
statements on that ground.
36. The legal landscape has, however, been fundamentally
changed by the enactment of the Human Rights Act
1998, which is now in force. By section
7(1)(b) the appellant is entitled to rely on his Convention right set out in
Article 6 in any legal proceedings (which by section
7(6) include an appeal against the decision of a court). By section
22(4) section
7(1)(b) applies to proceedings brought by or at the instigation of public
authority whenever the action in question took place. Section 2(1)(b)
requires the court determining a question which has arisen in connection with a
Convention right to take into account any judgment of the ECHR.
37. In determining this appeal now against the appellant’s
conviction we have to judge its safety by applying the standards of today, as we
held in R v Gordon (2000, unreported), accepting the correctness of
the decisions in R v Bentley [1999] Crim LR 330 and R v Johnson
(2000) The Times , 21 November. Mr Weatherup QC submitted on behalf
of the DPP that in accordance with the decision in R v King [2000] Crim
LR 835 we should disregard subsequent statutory provisions in determining the
safety of the conviction, including section 22(4) of the Human Rights Act
1998, which establishes the retrospective effect of the Act. We are unable to
accept that submission. We consider that it was the clear intention of
Parliament that the standards incorporated into our law by the 1998 Act should
be applied from the time when it came into force, and that one cannot in this
manner except appeals against pre-Act convictions from the process of
application of the Convention.
38. Mr Treacy QC for the appellant submitted that the
statement in paragraph 7-51c of the 2001 edition of Archbold is correct,
that a conviction which does not match up to the requirements of Article 6 of
the Convention cannot ever be anything but unsafe. In support of his submission
he referred to the decision of the Privy Council in Darmalingum v The State
(1999) The Times, July 18. In that case there had been an extremely
long delay between the appellant’s arrest and his trial and again between trial
and the disposition of his appeal to the Supreme Court of Mauritius. The Privy
Council quashed the conviction on the ground that the delay contravened the
provisions of section 10(1) of the Constitution of Mauritius, which is in
similar terms to those of Article 6(1) of the Convention. At page 7 of their
judgment the Board stated that the normal remedy for a failure of the guarantee
contained in section 10(1) would be to quash the conviction. Mr Treacy,
following the view expressed by the editors of Archbold, submitted that this
supported the proposition that the same result should follow when a breach of
Article 6 of the Convention has been established. We regard this decision as an
insufficient analogy. The Privy Council was there considering a constitutional
provision of Mauritius, part of the corpus of its law, which applied directly to
criminal trials in the state. The relationship between the safety of a
conviction in our legal system and a determination by the ECHR of a breach of
the Convention is in our view governed by rather different principles.
39. The issue was discussed by the Court of Appeal in
England in R v Davis (2000) The Times, July 25. In that case the
appellants were convicted in 1990 and their appeals were dismissed. Certain
documents and facts relating to informers had not been disclosed, in accordance
with the practice accepted at the time. The appellant brought an application
before the ECHR, which declared that there had been a violation of Article 6(1)
of the Convention. In considering the relationship between the safety of the
conviction and the finding of unfairness by the ECHR, the
Court of Appeal said:
40. The court held that the failure to disclose the material was a material irregularity, which made the convictions unsafe. We would observe, however, that the court would on its reasoning have reached this conclusion independently of the finding by the ECHR once it investigated the issue of the failure to disclose the material.
41. The statement of the law in R v Davis which we have quoted was approved in subsequent decisions of the Court of Appeal, but with a degree of qualification which takes the law somewhat nearer the statement contained in Archbold, loc cit. In R v Francom (2000) The Times, October 24 Lord Woolf CJ accepted the correctness of the proposition set out in R v Davis , but went on to say:
43. We respectfully agree with the statements of the law
in these cases and adopt them as the proper approach to the relationship between
a finding of unfairness under Article 6 of the Convention and the safety of a
conviction.
44. Mr Treacy submitted that the finding of the ECHR under
Article 6 should lead automatically to a conclusion that the conviction in the
present case is unsafe. Mr Weatherup resisted this, on the ground that the court
is only required, under section
2(1)(a) of the Human Rights Act
1998, to “take account of” the decision of the ECHR. He was critical of the
reasoning of the Court and the conclusions which it reached. He pointed out that
it did not receive any direct evidence of the conditions in Castlereagh when the
appellant was detained there, but founded its decision on the report of the CPT
made in July 1993, four and a half years later. He relied strongly upon the
argument that the appellant had based his case for exclusion of the statements
solely on the ground that he had been coerced into making them by reason of
ill-treatment, allegations which were rejected by the trial judge and the Court
of Appeal as a false and lying case, and that he had not proved that the
conditions in Castlereagh or his lack of legal advice had any causal connection
with his making the statements of admission.
45. We acknowledge the force of these arguments, though it
is probably fair to say that the appellant’s advisers would have been well aware
that to attempt at trial to found a case on lack of legal advice or conditions
in Castlereagh would have had no chance of success and so did not advance such a
ground for exclusion of the statements. There were, however, facts in this case
which gave more support to the conclusion of the ECHR than might exist in some
other cases. The appellant had asked on arrival and again in the fifth interview
about seeing a solicitor, and gave specific evidence that he was unsure about
the effect of the Article 3 caution and whether he should make any statement to
the interviewers. His admissions were all made before he had access to any legal
advice. Moreover, he showed symptoms of being materially more distressed and
vulnerable than many other suspects in the same position.
46. The ECHR has made a direct finding on the facts of
this case that the denial of access to a solicitor, against the background of
the conditions in Castlereagh, constituted a violation of Article 6(1) in
conjunction with Article 6(3)(c) of the Convention. We consider that we would
not be justified in concluding that the conviction was safe in the light of this
finding. We note that the Court said in paragraph 38 of its decision that it was
confining itself to the particular facts of the instant case.
47. If other cases come before us concerning admissions
made in Castlereagh by persons detained whose access to legal advice was
deferred, we shall take the ECHR’s decision in the present case into account. It
will then be a matter for consideration in each such case how far the Court’s
findings in this case are material in reaching a conclusion on the safety of the
conviction.
48. For the reasons which we have given we shall allow the
appeal and quash the appellant’s conviction.
