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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> James & Ors, R. v [2008] EWCA Crim 1869 (30 July 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/1869.html Cite as: [2008] EWCA Crim 1869 |
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CRIMINAL DIVISION
Strand London, WC2A 2LL |
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B e f o r e :
MR JUSTICE KING
DAME HEATHER STEEL DBE
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R E G I N A | ||
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DAVID JAMES, JOHN MELNICHENKO AND COLIN RICHARDSON |
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Computer Aided Transcript of the Stenograph Notes of
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Mr A Langdale appeared on behalf of the Second Appellant
Mr A Reynolds appeared on behalf of the Third Appellant
Mr S Smith QC appeared on behalf of the Crown
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Crown Copyright ©
"The prosecution case is that each defendant at first strenuously denied involvement but that one by on, led by Melnichenko and subsequently confronted by him, each defendant admitted it and did so not once but several times in contemporaneously recorded interviews which were usually signed by the defendant in question."
"... in addition to complying with the Rules, interrogating officers should always try to be fair to the person who is being questioned and scrupulously avoid any method which could be regarded as in any way unfair or oppressive."
"It is a fundamental condition of the admissibility of evidence against any person, equally or any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression."
"In looking at the safety of the conviction it is relevant to consider whether and to what extent a suspect may have been denied rights which he should have enjoyed under the rules in force at the time and whether and to what extent he may have lacked protections which it was later thought right that he should enjoy. But this court is concerned, and concerned only, with the safety of the conviction. That is a question to be determined in the light of all the material before it."
"The conduct of the trial and the direction of the jury must be judged according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.
We must judge the safety of the conviction according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.
'Where, between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time.'"
"... one of the most important and fundamental rights of a citizen."
"... the number of times that a police officer could genuinely be in that state of belief will be rare."
That is a state of belief whereby the solicitor will act improperly.
"... the grounds put forward would have to have reference to a specific solicitor. We do not think they could ever be successfully advanced in relation to solicitors generally."
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"At trial he agreed that he had signed the statements, but said he had done so because the police had told him that he had a mental blockage and they could have him committed to a mental institution. The details of the attack, he said, had been supplied by the police at the time of the interviews.
Eventually, at just before 1.00 p.m. on 2nd November, the appellant was charged. He was then given access, for the first time, to a solicitor. He immediately complained about his treatment by the police, and before long retracted his confessions.
The heart of this appeal, and indeed of the reference by the Commission, relates to the circumstances in which the appellant's confessions were obtained. In particular, emphasis is placed on the denial of access to a solicitor until he had confessed and been charged, and on the absence of any proper record of the earlier interviews, including the duration of those interviews, or some of them."
"that every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no reasonable delay or hindrance is caused to the process of investigation or the administration of justice by his doing so."
"This is a point which is readily acknowledged by the Crown. Mr Thompson QC fully accepts that, fairly soon into the series of interviews, denial of such access to a solicitor could no longer be justified by contemporary standards of fairness, even if it had been justified initially. The Crown concedes that what happened in this case amounted to a breach of section 58 of PACE, as well as a breach of the then operative Judges Rules."
"The prosecution does not seek now to resist this appeal, and, in our judgment, rightly so. We accept the arguments put forward on the appellant's behalf. By current standards of fairness the admissions made by him in the final three interviews should never have been allowed to go before the jury. Had that been the ruling, the case against the appellant would have been non-existent."
"The Commission considers that there is a strong case for referral for David James, Colin Richardson and John Melnichenko on the basis of the strength of the Court of Appeal's judgment in Alan Richardson, as the court took an exceptionally critical view of the officers involved in the case. The conduct of the officers so pervaded the admissions that the Commission considers it to be a real possibility that the Court of Appeal will reach a similar conclusion in relation to [the present appellants].
232. The Commission observes that it is an additional factor in the current referrals that it is difficult to unravel the extent to which the confrontations and statements from other defendants had an affect on the making of the admissions. Colin Richardson was shown Alan Richardson's statement in interview. In the summing-up, the judge had correctly directed the jury as follows.
'If you are satisfied that a defendant made an allegation in the presence of another defendant, and that the other defendant positively accepted and acknowledged it as being true, then that of course is evidence against that other defendant too.'
233. If Alan Richardson's confessions were unsafe, then any confession elicited on the basis of them was also likely to be found to be unsafe by the court. Whilst this makes the strongest case for referral that of Colin Richardson, the Commission believes that there is a strong basis for referral of all three youths."
"The Commission notes that the only substantial evidence against [the appellants] was their confessions to the police. Without such confessions, the Commission is confident that the cases would not have proceeded to trial. The confessions were obtained in breach of the rules applicable at the time and in circumstances which denied them important safeguards later thought necessary to avoid the risk of a miscarriage of justice.
252. In the Commission's opinion, the judgments in Bentley and Richardson regarding modern standards of fairness, and the cumulative circumstances surrounding the police interviews raise a real possibility that the confessions of [the appellants] would now be ruled inadmissible. That in turn leads to the conclusion that there is a real possibility that the Court of Appeal would not uphold those convictions."