A sewer runs through it
Alastair Logan on British Justice
Recent events have cast into sharp relief the crisis in our criminal justice system. First there was the abandonment of the trial of three West Midland police officers on charges of perjury and attempting to pervert the course of justice. Then a woman was awarded £25,000 in damages after being subjected to verbal and physical abuse by police officers who had arrested her in flagrant abuse of their powers and given perjured evidence at her trial. Then the Home Secretary announced the abolition of the right to silence for detained persons held in police stations. Then a man who had been ‘verballed’ by West Midlands Police was awarded £70,000 in damages, after the fact that his interview notes had been forged was revealed by an EDSA test; he was the twentieth person to have had his conviction quashed in a case in which the investigating officers belonged to the Serious Crime Squad of that force. Most recently, the Home Secretary’s proposal to send more people to prison has been attacked by prison governors and half a dozen of the country’s senior judges.
The abandonment of the trial of the West Midlands police officers had been preceded by the trial of three Surrey police officers for perjury and attempting to pervert the course of justice – the trial was described in Ronan Bennett’s ‘Criminal Justice’ (LRB, 24 June) which also raised the question of the trial of the West Midlands policemen.[*] As solicitor to Patrick Armstrong, one of the Guildford Four, since his arrest in 1974, I am very concerned about the way in which the trial of the three Surrey officers was approached by the prosecution, the defence and the judge, Mr Justice Macpherson.
To begin by recapping the events described by Bennett. In the aftermath of the release of the Guildford Four in 1989 the Director of Public Prosecutions instituted criminal proceedings against three Surrey police officers who had formed the team interviewing Patrick Armstrong. They were charged with conspiring to pervert the course of justice, the allegation being that they had given perjured evidence at the trial of the Guildford Four, during which they had claimed that a document they produced was a contemporaneous record of Mr Armstrong’s confession. The Crown case was that the document could not have been original and contemporaneous because it was the product of two earlier drafts that had been discovered by Avon and Somerset Police in May 1989. The document, the Crown alleged, was created to back up the police officers’ version of the interrogation, to create the impression that the information contained in Armstrong’s confession had been volunteered by him.
Since there was no evidence against the Guildford Four apart from their confessions, and since their defence was that they had falsely confessed, the credibility of the police officers was always crucial to the Crown case. During their trial in 1975 Mr Armstrong told the court, and refused to budge from his assertions despite rigorous cross-examination from Sir Michael Havers, that the content of his confessions had been largely suggested to him by the police officers and that he had said what they wanted him to say because their violence had terrified him and reduced him to tears. Mr Armstrong denied that the police officers had made a verbatim record, as they claimed at the trial, or that the ‘contemporaneous’ document was an accurate record of the interview. The officers were unable to say why it hadn’t been shown to Mr Armstrong and why he hadn’t been invited to sign it. The other defendants gave similar accounts of the violence. They were convicted because the jury chose to believe the police.
At the original trial the explosions at Guildford and Woolwich in October and November 1974 had been presented by the Crown as isolated acts of terrorism unconnected with any other event. That, to the Crown’s knowledge at the time, was untrue. The arrest of the IRA Active Service Unit in Balcombe Street in December 1975 required the prosecution to present a case against them which depended, apart from the admissions by two of the ASU, on the numerous forensic links to the offences which started in August 1974 and finished on their arrest. These links were identical to the forensic evidence discovered during the investigation into the Guildford and Woolwich offences and clearly demonstrated that Woolwich and Guildford were part of a connected series of events for which the Guildford Four could not have been responsible. The Crown went to extraordinary lengths during the course of the Balcombe Street trial to conceal these links. It even instructed Crown forensic scientists – as one was to testify to Sir John May – to alter their statements to remove reference to the evidence which connected the Guildford and Woolwich offences to the other crimes.
At the unsuccessful appeal of the Guildford Four in 1977, the Court of Appeal was content to accept the truth of the admissions of the Balcombe Street defendants. Their detailed confessions provided a wealth of hitherto unknown detail that exactly matched police forensic information and could only have been known to those who carried out the Guildford and Woolwich offences. Despite their admissions, no attempt was made by the police to interview the Balcombe Street defendants for these offences. The Surrey Police did send DCI Thomas Style, one of the three officers put on trial, to interview them, but despite their admissions to DCI Peter Imbert and the existence of a forensic statement which intimately linked the Guildford bombings to the Caterham bombing, DCI Style failed to ask them a single question about the Guildford bombings. No one was to tell the jury at his trial about this signal omission.
The case of the Guildford Four was eventually returned to the Court of Appeal by the Home Secretary in 1989, after considerable pressure from many quarters. Had the prosecution not withdrawn its case, the Appeal Court would have heard of a large number of disturbing matters. Among these were the deliberate suppression of evidence at the original trial in 1975 and the fact that the Crown witnesses, while on oath, gave evidence which was not the whole truth but only part of it. There was the concealment of statements made by Gerard Conlon’s alibi witnesses obtained by police within weeks of his arrest and found in a file marked ‘Not to be disclosed to the Defence’. They would have heard from new alibi witnesses for Paul Hill and Carole Richardson; evidence that Carole Richardson and Patrick Armstrong were heavily abusing drugs at the time of their arrest; and medical experts would have testified that their confessions were false. The only evidence against the Guildford Four was their confessions, which were mutually inconsistent on more than one hundred points. The Crown was unable to explain these inconsistencies.
But before this evidence could be presented to the Court of Appeal in 1989, the Crown prosecutor, Roy Amlot QC, told the Court of Appeal of three other major matters which fundamentally undermined the Crown case. The first was that the alleged contemporaneous record of Patrick Armstrong’s interview was not contemporaneous at all, as demonstrated by the discovery of two earlier amended drafts of it for which the officers were unable to provide a satisfactory explanation: Mr Armstrong’s alleged confession had been stated by the Crown in 1975 to be the most truthful and was therefore of critical importance to the Crown case, as was the integrity of the officers who had taken the confessions.
Secondly, Paul Hill had given evidence in 1975 of two other interviews which had taken place in breach of Judge’s Rules. The officers denied under oath that these interviews had taken place: but Avon and Somerset Police discovered the notes of those interviews as Paul Hill had described them. These interviews were crucial because they contained the first mention of Carole Richardson. So far 50 per cent of the interviewing teams involved in the Guildford Four case had seriously misled the trial court. The third matter was to affect the whole of the investigation. It was the discovery of two sets of custody records.
The original and true set, never before produced, accorded with the defendants’ evidence in 1975. The second set was fabricated; it was designed to back up the police version of the timings and details of the interviews. Taken together, these three matters – even if one were to disregard the other evidence that the Court of Appeal would have heard – were sufficient for the Court to decide that the convictions were no longer safe and satisfactory. Mr Amlot indicated that the Crown would not have prosecuted in 1974 had this information been available to them.
The trial of the three Surrey officers had wholly extraordinary aspects. First of all, these documents were discovered in May 1989, yet the policemen did not stand trial until April 1993. Far more complicated cases have been disposed of in a matter of months. The judge, Mr Justice Macpherson, permitted the defence to make an opening statement immediately after the prosecution’s, telling the jury what the defence would be. But there was never to be any defence – the defendants gave no evidence and called no witnesses. By taking the step that he did, without inquiring whether the defendants intended to give evidence, the judge permitted the defence barristers to give the ‘evidence’ their clients would never articulate and thus to give an appearance of legitimacy to their own statements and allegations.
The defence’s essential contention was that Mr Armstrong was guilty of the original offence because he confessed to it. They also contended that that was why he had failed to agree to be interviewed and to attend court to testify. This was untrue. Mr Armstrong was approached by the Avon and Somerset Constabulary in February 1990, four months or so after his release, at a time when he was suffering from Post Traumatic Stress Disorder and receiving treatment from two doctors, a psychiatrist and a clinical psychologist. He readily agreed to be interviewed but the doctors required certain conditions to be met which were in no way restrictive of the police. Miss Richardson, whom the police also wished to interview, was similarly affected by PTSD and the doctors required the same conditions for her. In addition she felt unable to undergo an interview by a male police officer and required the interview to be conducted by a female police officer. The police rejected the conditions.
In an effort to try and resolve the matter I wrote to the DPP inviting him to become involved. He declined, saying that it was not his function. Eventually the Avon and Somerset Constabulary sent a series of anodyne written questions, without any accompanying documents, intending that I should interview my own clients in order to provide the police with the statements they wanted. Since I was not a party to the investigation and did not know what the Avon and Somerset Constabulary had discovered, apart from what I had learnt during the course of Mr Amlot’s address to the court, I declined, saying that this was the function of the police and I could not adequately discharge it. There the correspondence rested.
It is also untrue to say that Mr Armstrong refused to attend court to give evidence. He was not invited to do so either by the prosecution or by the defence. Mr Edmund Lawson QC told journalists at court that the defendants’ solicitors had been attempting to find Mr Armstrong to serve him with a subpoena. No such subpoena appears ever to have been issued, even though the judge commented adversely about Mr Armstrong’s absence on numerous occasions. In fact, Mr Armstrong could have been contacted through me at any time had the judge thought it essential for the jury to hear him. The truth appears to be that no one wanted Mr Armstrong present at the trial or had made any attempt to contact him since 1990. The prosecution and the judge allowed his absence to be used to persuade the jury that he had something to hide. Indeed, the whole of the defence case consisted of an attempt to re-try Patrick Armstrong for the original offence, in his absence, and without enabling him to defend himself.
The Crown case did not in any way depend on Mr Armstrong. We all know that the DPP takes a decision as to whether or not to prosecute based on the available evidence. This is sometimes known as the 50 per cent rule: i.e. whether or not there is a better than 50 per cent chance of securing a conviction. The present DPP chose to describe this as a decision to ‘institute or continue criminal proceedings only when there is sufficient substantial, admissible and reliable evidence to provide a realistic prospect of conviction’. The decision to prosecute the three policemen was taken in November 1990, when it was known that Avon and Somerset Police had declined to interview Mr Armstrong because they were unwilling to accept the conditions laid down by his doctors. The Crown’s case was a document examination exercise which Mr Armstrong was not qualified to undertake, especially when he hadn’t seen the documents save for a photocopy of the alleged ‘contemporaneous’ record. It was no part of the Crown’s case that what happened to him during the course of his interrogation was relevant. The DPP must therefore have either ignored the 50 per cent rule or decided that there was a substantial chance of securing a conviction without Mr Armstrong’s evidence.
The defence characterised Mr Armstrong’s confession as ‘singing like a canary’. The simile is apt: the canary is a small, fragile bird found only in conditions of close confinement and subject to constant attack by large predatory animals. At his trial, Patrick Armstrong had provided a detailed explanation of what had occurred during his interrogations. If he ‘sang’, the tune had been written for him by the police. By allowing the defence to present their case without subsequently giving evidence on oath the judge enabled the defendants in this case to stay dumb; their ‘singing’ was done by ventriloquists.
The defence told the jury that there was new evidence never known of before. But on 20 July 1989 Roy Amlot told the Lord Chief Justice, at a directions hearing in the Guildford appeal, that every document of any relevance to the case had been served on the defence. If, as alleged, Mr Armstrong had made admissions that were contrary to the evidence he gave at trial, or given valuable evidence identifying members of the IRA to Surrey police officers after his conviction, would that not have been extremely important to the Crown at his appeal in 1977, let alone his appeal in 1989? Such evidence, therefore, should not have existed. Interviewed by police in 1990, none of those who now claim these statements were made mentioned them. Mr Armstrong was never given an opportunity to comment on the allegations. This ‘new evidence’ and his ‘personal file’ were not sent to me by Avon and Somerset Police when they were inviting me to interview him.
The defence also suggested that Mr Armstrong’s description in his confession of armed robberies on betting shops in Belfast proved that he was a member of the IRA – because, they claimed, investigations by the RUC had established that these robberies had taken place although they had never been reported. But Patrick Armstrong had provided an explanation for this at his trial: he had been working in the betting shops when they had been robbed, and had been interviewed by the RUC as a witness at the time. No one troubled to tell the jury that the RUC could not prove whether the robbers had been from the IRA, UDA, UFF or were just ‘ordinary’ criminals.
The defence further claimed that had it been true that the ‘contemporaneous’ document was a fabrication, they would have destroyed the rough drafts. The jury were never told about the other documents not destroyed – documents that, as the Court of Appeal accepted, demonstrated fabrication and deceit, and which were also in the control of the Surrey officers. Nor were the jury told about the discovery of similar documents in almost every case of miscarriage of justice.
The officers’ defence was a carefully constructed mélange of lies, untruths, half-truths and misleading statements. These fell into two categories: material for which Mr Armstrong had given perfectly reasonable explanations, answers or denials as long ago as 1975, and ‘evidence’ he had never been allowed to see. It was this, compounded by the prosecution’s failure to tell the jury about matters that would have given the lie to the defence assertions, and by the tactical manoeuvre that enabled the officers, thanks to the assistance of the judge and the lack of action by the Crown, to state their defence without running the slightest risk that they might have to give evidence on oath, that made it possible for the trial of the three policemen to turn into the retrial of Patrick Armstrong.
At one point the prosecution timidly criticised the judge for the favour he had been exhibiting to the defence case. The judge retorted that he had been hearing a one-sided case. In his summing-up he told the jury that the inference that the ‘contemporaneous’ document was the product of the two earlier amended rough drafts was not strong enough to prove the policemen guilty because, he said: ‘Only if it is surely and inescapably the only conclusion and deduction that you can reach could the case be proved. If another conclusion may exist, may exist, why then you could not be sure that the inference of deduction for which the Crown contend is established.’ His attitude was most clearly indicated by his remarks at the conclusion of the trial when, after the majority verdict of not guilty, he said: ‘It may be that the public and certainly those involved on the legal side may not wish to gaze at the entrails of this case further.’ Who ‘on the legal side’ is ‘gazing at the entrails of this case’ at the moment? Why, none other than Sir John May, whose judicial inquiry into the case was set up by the Home Secretary and the Attorney General on the day the Guildford Four were released. Could it be that the learned judge’s remarks reflected his dismay and that of his judicial colleagues at the criticisms made by Sir John in his interim report?
The decision by Mr Justice Garland to halt the criminal proceedings against the three West Midlands officers charged with perjury and conspiracy to pervert the course of justice in the case of the Birmingham Six brings to an end legal proceedings in that case which also began in 1974. The decision to abandon the trial was based on the judge’s stated belief that the officers could not get a fair trial, because of the volume and intensity of the publicity since the Six were freed. The case of the Six, he said, has become a synonym for false confession.
The case was much more than that. Like the cases of the Guildford Four, the Maguire Seven and Judith Ward, it started in a blaze of publicity much more intense, hostile and pre-judicial than anything those policemen have encountered. No one, least of all the police and the trial judges, saw fit to ponder for one moment what effect that had on their chances of a fair trial. Anne Maguire and her family, including 13-year-old Patrick, entered the dock in the Old Bailey on trial for possession of explosives after the massive publicity that attended the Guildford bombings trial, which had finished not long before. The media had made much of the assertion by the prosecution barrister, Sir Michael Havers, that the Guildford bombs had been made in the Maguires’ kitchen. No sooner had the trial started than the judge, who sat in both cases, and Sir Michael, who prosecuted in both cases, asserted that the Maguire case had no connection with the Guildford case at all.
As for the Birmingham Six, I remain haunted by the sight of their battered and bloody faces staring out from the police photographs of the time. It was the Six’s case that caused Lord Denning to refer to the ‘appalling vista’ that would open up if they were in reality the victims of a miscarriage of justice. Their case was twice rejected by the Court of Appeal. In the second appeal Lord Lane made his now famous remark that as the appeal progressed he became more and more certain that the jury’s original verdict was correct. To reject their appeal the court had to elevate to prominence evidence previously disregarded by the prosecution as worthless, and to destroy the character of defence witnesses who were serving police officers at the time and who testified to the violence that they had seen in the police station.
Had their trial gone ahead, the West Midlands police officers freed by the court last month would have based their case on allegations that the Six were guilty after all. Following its use by the three Surrey officers, this has now become the standard tactic. We shall see it used again. The idea appears to enable accused policemen to pass off what they did as an excess of zeal, or to suggest that there may have been an innocent explanation. Essential to this tactic is that those they accuse of committing the crime should not be in court to give evidence; that the officers should avail themselves of the right to silence when questioned; and that with the assistance, active or passive, of the Crown or the judge, they should avoid putting forward a formal defence that might entail giving evidence and being cross-examined. The Birmingham Six, like Patrick Armstrong, were neither asked to attend court nor interviewed.
The Home Secretary announced at the Conservative Party Conference that the right to silence would be abolished. His justification was that it is ‘ruthlessly exploited by terrorists’. Consider the figures. Some 250,000 people a year are arrested. About six people appear before our courts every year charged with terrorist offences. The number of police officers investigated for criminal offences each year is well above that number. Most of them, like the Surrey and West Midlands police officers, remain silent in the face of questioning and, like the Surrey officers, if prosecuted, decline to go into the witness box, where they would risk being cross-examined. If prosecuted (and many of them are not) they leave their ventriloquists to tell the jury what they themselves refuse to say on oath. The truth is that the Home Secretary’s blow, which he said was aimed at the terrorist, will hurt the criminal policeman more. What would the Conservative Party Conference have made of a Home Secretary who said that the right to silence was being abolished because it was being ruthlessly exploited by criminal police officers?
In the process of satisfying the Right of the Conservative Party Mr Howard has proposed removing one of the essential balancing factors within the criminal justice system. The right to silence counter-balances the powers, technical expertise, manpower and facilities of police officers and the prosecution. Its removal would attack two of the fundamental principles on which the criminal justice system is based: the presumption of innocence, which requires the prosecution to prove the charge against the defendant; and the principle that the defendant is not obliged to assist the prosecution to prove the charges against him.
The Royal Commission on Criminal Justice rejected the proposal to abolish the right to silence, as did its two predecessors. Research provided to Lord Runciman’s Commission which reported in July this year shows that 42 per cent of those who were arrested and detained in police stations during the currency of the Commission were educationally subnormal or of borderline intelligence; another 7 per cent were suffering from defined mental illnesses. The average IQ of detained persons was 82. One third were intellectually impaired and 35 per cent were not in a normal mental state due to extreme distress, mental disorder or drugs. Twenty per cent were suffering from an unusually high level of anxiety and distress. About 20 per cent required the assistance of an adult to safeguard them and their rights, though the police identified only 4 per cent of that number as requiring such protection. The police commonly failed to recognise that detained persons suffering from depression were vulnerable. There is no systematic training available to police officers to enable them to identify vulnerable suspects or mental disorder. The removal of the right to silence attacks the vulnerable and the disorientated, who massively outnumber the terrorists and the professional criminals, in or out of uniform.
The policing of our society is a partnership between the citizen, the police service and the legal system. At the present time, that partnership is in imbalance. Public perception has changed. Surveys have shown that a significant proportion of the public either distrust or have mixed feelings about the police. An even larger percentage have lost faith in the criminal justice system. Nearly 40 per cent of the population think that cases like the Guildford Four and Birmingham Six are a tiny proportion of the total number of miscarriages. The police, the judiciary, the legal profession and the legal system are there to serve the community and not vested interests, nor are they the agents of the government in power. Our priority must be to restore public confidence in the criminal justice system, but that won’t be possible as long as the judiciary and the police engage in whispering campaigns, as they have done over the Birmingham Six and the Guildford Four. Some policemen and some of the judiciary seem to believe that they can recover the status quo ante by ‘reconvicting’ the victims of miscarriages.
The decision of Mr Justice Garland may have repercussions way beyond the case itself. Are we seriously to believe that his words would also hold true for someone charged with, say, a terrorist offence? Should the case against those suspected of the Lockerbie bombings be dismissed on the same basis? Or is there a double standard: one law for the policeman put on trial for criminal offences in relation to the investigation and conduct of a case, and one for the rest of us?
[*] Reprinted by Penguin on 6 September as Double Jeopardy.