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THE VEXED ISSUE OF GAOL CELL CONFESSIONS

David Wolchover Barrister, of Gray’s Inn, London

FORMER HEAD OF CHAMBERS

Temple Bar, London

Please note that this article is liable to be revised from time to time.

This revision dated14 June 2016

[Previous revisions posted: 18.10.04, 1.4.05, 19.05.05, 13.06.05;

26.08.05; 10.09.05; 1.04.06; 5.1.06; 4.1.15; 5.04.16; 21.04.16]

N 15 FEBRUARY 1999 Mr Jack Straw, the then Home Secretary, told the House of Commons of his

plans for the indefinite detention without trial of dangerous persons with severe and untreatable personality disorders. Most press reports of the announcement1 referred prominently to the case of Michael John Stone, who could not be incarcerated under the Mental Health Act because of the existing state of the law and who allegedly went on to commit the notorious Russell murders, for which he had been convicted the previous October. If Michael Stone’s case was cited in order to demonstrate a need for the administrative detention of dangerous psychopaths a less suitable illustration it would be hard to imagine, for the case against him was built on a class of evidence which many lawyers would regard as inherently and fundamentally suspect.

O

After Stone’s first trial the case grew weaker still, the Court of Appeal granted him a re-trial and it remained weak when he was convicted – perversely – for the second time in 2001. In January 2005 his appeal against that conviction was dismissed, with the Court of Appeal affirming its belief in the jury’s ability to separate the supposed truthfulness of the Crown’s sole witness on the key issue from his undisputed (indeed, self-proclaimed) general dishonesty and lack of credibility. But for all their faith in the jury’s diffidence, the court’s insouciance, not to say complaisance, as regards the many respects in which the Crown’s case simply fails to stack up continues to leave little basis for objective confidence in the

1 See national press, 16.2.99.

verdict.2

Meanwhile, in 2002 a Mental Health Bill had been introduced to provide for the detention of non-offenders with untreatable mental disorders3 but was subsequently withdrawn. By a curious coincidence, on the very day in September 2004 that Stone's second appeal was ordered to be adjourned a new Mental Health Bill reviving the basic proposal for detention of untreatable unconvicted psychopaths was published in draft.4 Since it was the Stone case which almost certainly provided the main inspiration for the original proposal for reform in 1999, that factor may be reason enough to examine the key evidential issue involved in the case. However, even without the mental health dimension the theoretical and practical issues involved in basing a prosecution primarily on the class of evidence upon which Stone's conviction was sustained, that of alleged confessions made to a fellow prisoner, has long posed a vexed and special problem for the courts which bears a compelling need for scrutiny.5

2R v Michael John Stone [2005] EWCA Crim 105, decision 19.1.05, judgment given 21.1.05, per Rose LJ, Moses J and Walker J. For commentary on the case see eg Wells, C., and Stevenson, M., “Cell confessions―no stone left unturned,” New Law Journal 8.4.05; Morton J., “Prison Informers: Unreliable Evidence,” (2005) J.C.L., 89-91; Mahmutaju, K., “Confessions: A few considerations on the case of R v Michael Stone,” CBA News, June 2005. Criticism in the text was summarised in Wolchover, D., and Heaton-Armstrong, A., “Confessors of the (prison) cloth,” [2005] Archbold News, 23 May, pp.8-10. Most recently the case was reviewed in detail in Wolchover, D. and Heaton-Armstrong, A, “The Unconvincing Conviction of Michael Stone,” Criminal Law and Justice Weekly, four parts, cited (2016) 170 JPN 127-131 (Feb 20); 149-153 (Feb 27); 171-176 (March 5) 194-196 (March 12).3 See eg, The Times, 26.6.02.4 See The Guardian online ed. 8.9.04 (adjourn-ment); The Guardian, 8.9.04 (Bill).5 The account of the Michael Stone case has been expanded in the present edition of this treatise to incorporate much of the text of Wolchover and Heaton-Armstrong, “The Unconvincing Conviction of Michael Stone,” cited above at n.2. As originally published it was based in part on the summary set out in the judgment dismissing his appeal in January 2005 (see note 2, above) but also developed material contained in an earlier piece by the present author and Anthony Heaton-Armstrong (see N.L.J.., 26.2.99) which drew on contemporary newspaper accounts of the trial (see The Times, 14.10.98; 21.10.98; 24.10.98; 27.10.98; Guardian, 14.10.98; 21.10.98; Independent, 21.10.98). For additional material reliance is placed on investigative pieces in the Daily Mail by Jo-Ann Goodwin published on 13 and 24 March 1999, and other press reports. A treatment of the case by Earl, C., “The framing of Michael Stone for the Chillenden murders: how prison confessions have become the antidote to PACE,” and posted on the

Levi BellfieldFor a number of years reports have occasionally surfaced in the national and local press and TV, blogosphere and social media suggesting that the notorious serial killer Levi Bellfield, convicted of the murder of two women and the 2001 murder of 14 year old schoolgirl Milly Dowler (as well as the attempted murder of another woman) may have been the true culprit. This was supposedly based on two main factors. First, the Russells had been attacked by a man brandishing a hammer. This was the same method Bellfield was proved to have used to attack and kill Marsha McDonnell in 2003 and Amelie Delagrange in 2004, although those attacks took place at night and involved lone young women as victims rather than a daylight attack on an older woman with her two female children. The second factor was that he is said to bear an arguably closer resemblance than Stone to an E-fit likeness which a witness had helped to prepare and which had been claimed matched Stone.6

On January 27, 2016, it was announced that Bellfield had at last admitted to police that he had murdered Milly Dowler, in the light of which, it was reported, an undisclosed number of police forces were reviewing other murder investigations. That these may include the Chillenden murder was hinted in at least one report in which it was stated that Bellfield had been suspected of being linked to the case.7 Probably mischievously he has since denied making the confession8

I. CONFESSIONS TO INVESTIGATORS AND TO LAY WITNESSES9

Libertarian Alliance website as Legal Notes No. 39, has been deleted. 6 See eg Gordon Raynor, “Could Levi Bellfield have killed Lin and Megan Russell?” Daily Telegraph, June 26, 2011, http://www.telegraph. co.uk/news/uknews/crime/8597209/Could-Levi-Bellfield-have-killed-Lin-and-Megan-Russell. html; Stephen Wright and Chris Greenwood, “Did Milly’s murderer kill Lin and Megan Russell? http://www.Dailymail.co.uk/news/article-2007524 /Milly-Dowler-murderer-Levi-Bellfield-Did-kill-Lin-Megan-Russell.html; “Police face demands to reopen investigation into fatal hammer attack,” Mail Online, June 24, 2011; The Murder of Lin and Megan Russell – Michael Stone, http://miscarriageofjustice.co/index.php?Topic= 912.07 See, eg, Jamie Grierson, “Police open murder files after Levi Bellfield killing admits Milly Dowler,” Guardian, January 28, 2016. 8 Kevin Rawlinson, “Levi Bellfield denies confessing to Milly Dowler’s murder,” Guardian, February 12, 2016. 9 See generally Wolchover, D., and Heaton-Armstrong, A., Confession Evidence, London: Sweet and Maxwell Criminal Law Library, 1996,

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The examinations of suspected offenders by investigating officials has been used at trial from time immemorial. As such they constituted what we would understand as hearsay, that is they were adduced as the factual narrative of a person who was not, and could not be, a witness: the accused. With the inception of the rule against hearsay in the 17th century some legal device had to be found for circumventing the rule in order to ensure the continued admissibility of such a valuable specie of evidence. So, apparently adapted from an old Germanic rule avowing the incontrovertibility of records taken under royal seal, confession on examination quickly came to be justified by the rationale that officials such as justices of the peace, who customarily took the examination, were “judges of record.”10 The assumption was that the evidence of authentication enjoyed an extraordinary reliability. However, this limitation was challenged in the next century, when it was asserted that the accused’s confession “made in discourse with private persons hath always been allowed to be given in evidence against the party confessing”11 and it was swiftly affirmed judicially that a confession made to a private person was not only admissible but also sufficient to convict of the summary offence of deer-stealing.12 By the last decade of the century there was no longer any doubt: in R v Lambe all twelve judges agreed that no less admissible than a confession before a JP was one “made in the adjoining room previous to his having been carried into the presence of the Justice, or after he had left him, or in the same room before the Magistrate comes, or after he quits it.”13

With the development of the rule that a confession would be vitiated by threats or promises held out by a “person in authority,” many of the reported cases in the 19th century concerned confessions made unofficially to employers, usually about

paras. 1-002 to 1-006.10 Hale, Sir Matthew, The History of the Pleas of the Crown (2 vols.), London: Sollom Emlyn 1736, ii, 284 (originally ordered by Parliament to be published four years after Hale’s death in 1676). 11 Hawkins, Pleas of the Crown, 1st ed. 1716, c.46, §.31. 12 R v Dore (1738) Andrew’s Rep. 301. The precedent was later overlooked by commentators, who attributed the provenance of the rule of sufficiency for a conviction of a confession in any form to R. v John Wheeling, a case at first instance cited in a footonote on R. v Jacobs (1790) 1 Leach CC 311, but the reference has been shown to lack authentication: see Wolchover and Heaton-Armstrong, op. cit., para. 1-026.13 (1791) 2 Leach CC 552, at p.559.

theft in the course of work, although sometimes the offences were of a sexually related nature (such as abortion) into which employers of domestic servants supposed it was their business to inquire. Confessions made to interested persons, such as family members of the victim, also featured in a number of the cases reported. However, there were virtually no reported cases concerning confessions made to fellow prison inmates because the fundamental admissibility of a private confession was by then not in question and co-prisoners were plainly not persons in authority over the accused and would be in no position to the secure an end to the prosecution, or mitigation of the penalty, if there were a confession.

The issue in all the person in authority cases concerned the voluntary nature of the confession, not its authenticity.14 Once it had been settled in the 18th century that there were no special requirements for authentication of a confession (beyond the testimonial assertion that one had been made), there seemed little further reason for the courts to consider, as a matter of generality, any of the potential problems which might arise in assessing the weight to be attached to evidence given by different categories of lay persons who might be claiming to have witnessed a confession.

There may be any number of reasons why some lay witnesses might have a “personal agenda” to serve in alleging that the accused had confessed to them privately. For example, the father of a young woman who has been raped but is refusing to disclose the identity of her assailant strongly suspects a particular individual and concocts a confession in order either to make the case certain or to provoke his daughter into exonerating the man if by some slender chance (so he thinks) the man be innocent. Again, without any element of conscious deceit a witness’s hearing, comprehension, memory or retrieval may be imperfect when it comes to assimilating and recalling an incriminating statement or remark. However, while juries could always be asked to bear these factors in mind on a case by case basis, these were not problems about which the courts were ever asked to decree any specific directions which judges were required to give juries, or even to express

14 It is of note that there were no reported cases concerning confessions made to fellow prison inmates―a topic which forms an important aspect of the present chapter―for the simple reason that co-inmates were plainly not persons in authority over the accused and would be in no position to secure an end to the prosecution, or mitigation of the penalty, on condition that the defendant confessed.

any authoritative opinions or guidance for judges in assisting juries. There was no juridical requirement, in other words, for juries to be given any special warnings about the dangers inherent in accepting evidence of oral confessions. This was surprising, in a way, bearing in mind the scepticism which has been expressed on the highest authority towards evidence of oral confessions allegedly made to official investigators and lay persons alike.

II. JURIDICAL SUSPICION OF EVIDENCEALLEGING AN ORAL CONFESSION

Well before the judges of the late 18th century were extolling the virtues of a voluntary confession as “deserving of the highest credit,”15 and “[w]hen well proved . . . the best evidence of guilt,”16 Sir Michael Foster in his treatise of 1732 was want to offer a rather more sceptical take on the question

“. . . hasty confessions, made to persons having no authority to examine, are the weakest and most suspicious of all evidence. Proof may be too easily procured, words are often mis-reported, whether through ignorance, inattention, or malice, it mattereth not to the defendant, he is equally affected in either case; and they are extremely liable to misconstruction and withal, this evidence is not, in the ordinary course of things, to be disproved by that sort of negative evidence, by which the proof of plain facts may be and often is confronted.”17

Much later, Wigmore, too, although prone to idealise the value of confession evidence18

acknowledged that the experience of the courts was not always encouraging

“Paid informers, treacherous associates, angry victims, and overzealous officers of the lawthese are the persons through whom an alleged confession is oftenest presented; and it is at this stage that our suspicions are aroused and our caution stimulated.”19

15 R v Warickshall (1783) 1 Leach CC 263.16 R v Lambe (1791) 2 Leach CC 552, at pp.554-555.,17 Crown Law, p.243. 18 A Treatise on the Anglo-American System of Evidence in Trials at common Law, 3rd ed. Boston 1940 (10 vols), para. 1686). For a more down-to-earth analysis of confession utility see the judgment of Lord Lane CJ in R v Rennie [1982] 1 All ER 385, at p.388.19 Op.cit., para 866.

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In R v Thompson20 Cave J. noted with some irony a familiar pattern in which prisoners often seemed the more penitent as the case against them was weaker:

“I always suspect these confessions, which are supposed to be the offspring of penitence and remorse, and which nevertheless are repudiated by the prisoner at trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner’s guilt is otherwise clear and satisfactory; but, when it is not clear and satisfactory, the prisoner is not unfrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession;desire which vanishes as soon as he appears in a court of justice.”

Modern empirical research has validated this scepticism.21 Cave J. was thinking more of confession to police officers than to lay witnesses but the principle is surely applicable to oral confessions generally.

III CASES OF CONFESSION TO PSYCHIATRISTS AND PROBATION OFFICERS

Reference was made earlier to admissions allegedly made to such lay witnesses as employers and family members of victims. However, it is far from unknown for the prosecution to rely on confessions or self-incriminatory utterances allegedly made to those who perform a professional role in dealing with offenders in a confiding capacity outside the context of a police investigative function.

In recent years the Court of Appeal has considered cases in which reliance was placed upon confessions made to professional counsellors in whom the maker must have assumed confidentiality was assured. In R v McDonald22 the appellant had written to his victim’s parents explaining that he had killed the victim after being told by him that he had had sex with his (the appellant’s) wife in the appellant’s mother’s bed. At his trial for murder he raised provocation and the prosecution called a psychatrist, who had seen him in order to determine fitness to plead, the issue of diminished responsibility and mental state in general, and who gave evidence that

20 [1893] 1 QB 12, at p.18.21 See Moston, Stephenson and Williamson, “The Extent of Silence in Police Interviews,” in Greer and Morgan (eds.), The Right of Silence Debate, Bristol 1990, cited in Wolchover and Heaton-Armstrong, Confession Evidence, para. 1-017.22 [1991] Crim LR 122.

the appellant had told him that he had to make up some reason for his behaviour. It was contended that the evidence ought to have been excluded on the grounds of unfairness as it related to a non-medical issue. However, it was held that the Crown need not have adduced the letter as it was self-serving although having done so it would have been misleading not to have adduced the appellant’s comments to the psychiatrist. It is not known if the psychiatrist had covertly tape-recorded the consultation but it may certainly be assumed that he did not give the appellant any opportunity to authenticate a note of the exchanges. The decision should be contrasted with the similarly unsuccessful appeal in R v Cavill,23 another murder indictment. In that case the appellant was seen by a psychiatrist instructed by the Crown Prosecution Service in the absence of a solicitor and was told by the doctor that his report would be going to the CPS. In the course of the consultation the psychiatrist asked him about his movements on the fatal night and he gave an account which was inconsistent with the evidence he gave at trial. Accordingly the psychiatrist’s evidence of the consultation was adduced in evidence. The defence contended that it was wholly inappropriate to conduct an interview which involved asking the appellant to account for his movements, as there was no history of psychiatric illness or mental illness of any sort. Dismissing the appeal the court noted that the defence disputed neither the accuracy of the report nor the warning about the intended disclosure.

Reliance on confessions confided to a professional counsellor has not been confined to the medical profession. In R v Brown24 the appellant made no admissions during a formal taped police interview attended by his solicitor and a social worker acting as appropriate adult. Afterwards the appellant was told by the social worker in private that she thought she knew what had happened and that he had had something to do with the assault in question, whereupon he admitted the assault to her. She did not tell the solicitor what had been said but after consulting her superiors made a statement to the police. The trial judge accepted that the social worker had initiated the exchange and had not warned the appellant that anything he said might be used in evidence and that he had in all innocence been misled therefore into thinking that he was speaking in an atmosphere wholly different from that

23 (1995) unreported, 93/4506/Z3, 11 April, CA.24 (1999) unreported, 9807320/Y2, 21 May, CA.

which prevailed in the course of the formal interview. Nevertheless, he found that there was no bad faith and no unfairness in allowing the evidence to be given and it was held that there was no reason to go behind the ruling. In R v Elleray25 the appellant pleaded guilty to indecent assault but in the course of being interviewed by probation officers with a view to the preparation of a pre-sentence report admitted raping the complainant on a number of occasions when drunk. He was charged with four offences of rape and, giving evidence for the prosecution of the admissions, the probation officers admitted that they had not transcribed what the appellant had said. Dismissing the appeal and rejecting the appellant’s submission that the admissions should have been excluded the court drew an analogy with an interview by a doctor and referred to the case of R v McDonald. Although a probation officer was under a duty to conduct a risk assessment and could not simply ignore relevant comments by a defendant the prosecutIon should always consider carefully whether it was right to rely on such evidence. However, in the instant case the prosecution did not act unfairly in prosecuting for the rapes.

IV CAUTIONING JURIES

As already observed, judicial and academic scepticism towards evidence alleging oral confessions has not been translated into any general requirement for juries to be given warnings about such evidence. However, there will usually be a need for caution in approaching evidence of oral confessions attested to by persons who may have a personal interest in the case. The defence will certainly stress this in their closing speech and, in summing up, most competent and fair minded judges will gladly remind the jury of the defence submission, even without any obligation to do so from ‘on high.’ In the discussions between Bench and Bar which are nowadays so often conducted prior to speeches or the summing-up in order to reach common ground on the issues and therefore avoid error the defence should certainly invite the judge to endorse the need for care in such cases. Again, even where seemingly disinterested witnesses are concerned it would not be amiss to instruct juries that when dealing with the account of a disputed oral confession they should be careful to bear in mind that utterances can be misheard, misremembered through being misunderstood and misrecorded, even when committed to writing soon after being pronounced.

25 [2003] EWCA Crim 553.

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Although, then, there is no formal duty in general to warn the jury of the potential weaknesses inherent in evidence of oral confessions, very significantly it has quite recently been held that in relation to one particular category of evidence of an oral confession attested to by a private witness special warnings are now obligatory subject to the meeting of certain conditions. This is in the case of confessions allegedly made to, or at least professedly witnessed by, a fellow inmate of the accused, in prison. Confessions made and witnessed in these circumstances are by far the most commonly encountered example of confessions made to private witnesses. They have featured in a number of well publicised trials in recent decades26 and no doubt in countless others which have failed to attract media attention. It takes little imagination to appreciate that evidence purporting to attest to such confessions is inherently suspect. Quite apart from the fact that testifying co-inmates may have a bad record of dishonesty and general disregard for the law and may be persons therefore of very limited credibility, their evidence may well be tarnished by such factors as the hope of reward from the state in the form of early release or the dropping of charges or some other beneficence (even if there is no evidence of their being habitual police informants), or payment by a newspaper for their story, or even the attraction of cudos from other prisoners. It is well-known that certain classes of prison inmate are unpopular with other prisoners, for example alleged or proven sex offenders, and such persons are usually at risk of unofficial (but officious) violent retribution at the hands of other prisoners. The same factor may be instrumental in inducing some prisoners to come forward “selflessly” with allegations of confession in order to strengthen the case against an accused charged with an offence on the proscribed list―an example of “noble cause corruption” or “pious perjury,” as it used to be called.

Confessions witnessed by prison co-inmates represent the example par excellence of suspect evidence of oral confessions made to lay witnesses and have been the subject matter of very intense public interest in recent years, mainly as a result of the case of Michael Stone, whose case is discussed later. Accordingly, it is proposed to devote the rest of this article to concentrating on the law relating to such confessions.

26 See below for several examples.

However, before moving on to that discussion mention should be made of a possibile scenario in which in might be envisaged that a suspect who is in police detention is occupying the same holding cell as a lay informant who will allege that the detainee made incriminating remarks to him. If there be any suggestion that the witness was deliberately planted in the cell in order to ‘obtain’ a confession in circumstances in which the police were plainly circumventing restrictions on conducting a PACE interview at that stage (for example, because there was by now enough evidence to charge) the evidence would probably be excluded. To the knowledge of the author there are no cases on the point recorded although there are a number of reported cases in which incriminating admissions triggered by third parties in the police station have been overtly tape-recorded. But that situation is outside the scope of this monograph.

V. CONFESSIONS ALLEGED BY FELLOW PRISONERS CONTRASTED WITH THOSE ADDUCED BY THE POLICE

It is instructive to compare the willingness of the courts to allow uncorroborated and unsubstantiated gaol cell confessions to sustain a conviction for murder with the attitude of our lawmakers towards oral confessions witnessed by the police.

Provisions under PACE for validating confessions made to police officersThe PACE Act and its associated codes of practice make provision for the audio tape-recording of interviews with suspects at the police station.27 Code E requires the aaudio-recording of all such interviews in respect of any indictable offence or offence triable either way.28 Code C provides that following a decision to arrest a suspect the police must not interview the suspect about the relevant offence other than at a police station, unless certain conditions of urgency apply.29

However, not all confessions are made within the context of a formal interview. Sometimes it is alleged that the accused made a spontaneous confession or other

27 Section 60; Code C, TheCode of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, and Code E, The Code of Practice on Tape-Recording Interviews with Suspects, the current editions of which were issued under s.66 of the PACE Act 1984 and s.77 of the Criminal Justice and Police Act 2001, and brought into force on 1.8.04 by the Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2004 (S.I. 2004 No. 1887).28 E3.1. 29 C11.1

self-incriminating remark to the police, that is one not prompted by police questioning. Obviously police officers would not be expected to have their pens and notebooks permanently poised in order to record such utterances as might happen to fall from the lips of the accused. However, short of requiring all officers to carry with them at all relevant times voice activated portable audio recorders, of the type which have long been available at low cost, PACE goes as far as it may be thought possible to go in placing obstacles in the way of concoction. Thus, inserted in the 1991 revision of PACE Code of Practice C following strictures by the Court of Appeal in R v Matthews30 was the provision requiring that a written record was to be made of any comments by a suspected person, including unsolicited comments, which are outside the context of an interview but which might be relevant to the offence.31 The Code does not require ex post facto notes of unsolicited comments to be offered for verification as soon as practicable but a very important counterpart of the requirement to make a note of such utterances is the provision requiring that at the outset of any subsequent audio-recorded interview under caution, the suspect must be asked to verify earlier utterances not recorded on tape.32 This is a measure clearly designed to prevent concoction after an audio-recorded interview has produced no admissions. Failure to ask for such verification will cast doubt on evidence of the making of the remark and will probably render it inadmissible. Again, if the accused is confronted with the ex post facto record of a spontaneous admission soon after its utterance, an indignant denial that it was ever made will lend support to the denial. People who unload their consciences to the

30 (1989) 91 Cr.App.R. 43.31 C11.13. The record must be timed and signed by the maker and, where practicable the person must be given an opportunity to read the record and to sign it as correct or to indicate the respects in which it is considered inaccurate. Any refusal to sign should be recorded: C11.14. Following representations made by the present authors in 1990 and 1994 the 1995 revision of Code C contained a new Note for Guidance (11D, now 11E) which advised that when suspects agree to read records of interview and other comments and to sign them as correct, they should be asked to endorse the record with words such as “I agree that this is a correct record of what was said” and to add their signature. Where a suspect does not agree with the record, the officer should record the details of any disagreement and then ask the suspect to read the details and then sign them to the effect that they accurately reflect the disagreement. Any refusal to sign when asked to do so should be recorded.32 C11.4 and E4.6.

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police rarely if ever feel an instantaneous regret at having done so sufficient to mobilise defensive acting skills. Where second thoughts occur that will be much later. The reality of human experience is that people who are sorry for their actions rarely recover from their remorse the moment they express it.33

The whole PACE scheme for authenticating admissions was aimed at quelling disquet over police malpractice. There was undoubtedly cause for concern in this area, yet PACE clearly embodies a fundamental mistrust of police officers as a whole. In spite of the fact that they must obviously be of impeccable character to get into the police in the first place, officers are not trusted to give reliable evidence unless it is validated by means which are unassailable.

Contrasting trust reposed in offendersBy the irony of a remarkable contrast, where evidence is adduced of a confession made in private, in prison, to an individual with a proven record of serious crime and wholly unauthenticated by any of the safeguards which are required when a spontaneous oral confession has allegedly been made to a police officer, the accused may be convicted on the strength of that confession alone entirely unsupported by any other independent evidence.

Although a fellow prison inmate was called to assist the Crown in Le Botiler’s Case in relation to an alleged confession reliance on such witnesses is largely a modern phenomenon. This is because for a considerable period before the 19th century it had been the rule that a criminal conviction resulted in loss of testimonial competence. The rule seems to have had its origins in Germanic law, possibly with links also to the Old Testament precept “Put not thine hand with the wicked to be an unrighteous witness.”34 It is traced back as early as a 14th century case when it was declared that a conviction for conspiracy at the suit of the Crown would result in loss of competence.35 Hale cited a contemporary case to show that convicted felons were similarly disqualified but pronounced the view that the king’s pardon for any offence rendering the accused incompetent had the effect of removing that incompetency.36

33 See Wolchover, D., “The Myth of the Unsigned Confession,” New Law Journal, 24.10.86, p.100734 Exodus 23:1.35 R v Robert de Skelebroke le Botiler (1302) Y.B. 30, 31 Ed. 1 (Alfred J Horwood, ed) London 1863, p. 543. per Shardelowe J.36 Pleas of the Crown, London, 1736, ii, 277-278, citing Lord Castlemain’s Case (1680) 7 St.Tr. 1067

Nearly two centuries later the rule of incompetence was still being justified on the basis that, as Starkie argued, the object of the oath being to bind the conscience of the witness it followed that the testimony of a person who had shown a disregard for laws human and divine ought not to be received since it could not reasonably be expected that such a person would respect the obligation of the oath.37 The reiteration of that simplistic and inflexible view of human behaviour was swiftly gainsaid by Bentham’s demonstration of the fallacy of regarding moral turpitude as an objection to competence rather than to the weight of the evidence.38 The utilitarian appeal of this led, in 1843, to the abolition of incompetence by statute.39 Given that few remand prisoners were of good character, and that any prisoner offering himself as a witness to an alleged confession would be most unlikely to have a clean record, the old rule would have served to preclude the admissibility of most confessions attested to by co-inmates.

VI. ARGUMENTS AND OPTIONS

The question of the admissibility of confession attested to by co-inmates with a bad record could not now seriously be challenged on any basis of principle. On the other hand, what remains very much a live issue is the question whether such a confession should be permitted to warrant a conviction in the absence of other evidence. However, it is proposed to review briefly here certain arguments which have been advanced in favour of, and against, the use of prison cell confessions as a matter of practice.

Should resort be made to prison cellconfessions as a matter of practice?40

In favourIt is argued that the prosecution of serious

crime is too important to tolerate a rule indiscriminately and inflexibly shutting out the evidence of a given category of witness as inherently unreliable without regard to

(evidence allowed because the witness had received a pardon). On the effect of a pardon he expressly dissented from the view of Lord Coke CJ in Brown v Crashaw (1614) 2 Bulstrode 154.37 Evidence, London 1824, p.83.38 Bentham, J., Rational of Judicial Evidence, eds J.S. Mill et al. (5 vols.) London 1827, Bk.ix, Pt iii, c.iii, cited in Wigmore, op. cit., para. 579, and Holdsworth, Sir W.E. A History of English Law, London: Methuan, 1936-1972 (17 vols) ix, 193.39 6 & 7 Vict.. c.85.40 See generally Toczek, L., “Cell confessions,” NLJ, 1007, 24.5.02, and to Dein, J., “Non Tape Recorded Cell Confession EvidenceOn Trial,” [2002] Crim.L.R. 630, pp. 632-634.

the particular circumstances. In an age of some sophistication, it might be contended, the members of a modern jury, assisted by skilled counsel employing cross-examination tech-niques which have been honed to razor sharp perfection over centuries of practice, are well able to separate the wheat from the chaff. A key safeguard against perjury is the duty of the Crown Prosecution Service to evaluate the reliability of potential witnesses, and hence to make a judgment on whether to call them, using criteria set out in the Code for Crown Prosecutors.41 The prosecution are also bound by rules requiring the disclosure of any material which may weaken their case,42

including the previous convictions of witnesses and any previous utterances, oral or written, which may be at odds with their evidence in court. The trial judge enjoys an overriding discretion to exclude evidence if its probative value is outweighed by its likely prejudicial effect and in any event is obligated to warn the jury that prosecution witnesses may have a purpose of their own to serve.43 Lastly, a most important safeguard is afforded by the rule in R v Galbraith44 that the judge ought to stop the trial where the case against the defendant is tenuous, a characterisation which is arguably warranted when the only evidence is an alleged oral confession made to a fellow prison inmate with a bad criminal record. Where, in “borderline” cases, there is some doubt as to whether the state of the evidence is such as would bring it into the category of “tenuous” the judge has a discretion to stop the trial.45

AgainstThe use in evidence of a prison confession

is likely to involve the inherent prejudice which will follow from the jury learning that the defendant has been held on remand, rather than having been on bail. With the jury hearing evidence of the defendant’s “activities and associations when in custody, and all the unsavoury things that discussion about life in prison brings . . . cell confession carries with it a flavour and

41 The prosecution must research fully the character and antecedents of a prisoner before deciding to call him to give evdience against a fellow prisoner: see R v Molloy and Hickey, unreported CA, 20.7.97, and R v Causley [2003] EWCA Crim1840, both cited in Stone [2005] EWCA Crim 105, para 29. 42 Criminal Procedure and Investigations Act 1996, ss.3, 7 and 9.43 See eg R v Beck (1982) 74 Cr.App.R. 221.44 [1981] 1 WLR 1039.45 ibid.

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complexion, which, in itself, always puts the accused at unfair advantage.”46

Although the prosecution bear the duty of disclosure, this only extends to material which they actually have in their possession.47 More often than not such potentially crucial material as prison, medical, psychiatric, psychological and social services reports and records will be in the hands of third parties who will be bound by confidentiality if the witness refused to authorise disclosure. The CPS might have second thoughts about relying on a witness who adopted such an attitude but if it were decided to use a witness who was unwilling to co-operate with the defence this would be a matter for comment but no more than that. There is no right to the disclosure of material which is required only for use in cross-examination, but which is not prima facie admissible.48 The inmate witness attesting to a confession in prison will often have a background of complex emotional and behavioural instability without knowing about which the jury can hardly be expected to make a reasoned assessment of whether the account of the confession is reliable or fictitious.

Concealing the informer status of the witness

The potential instability and susceptibility to inducement of many prison inmates may be a key factor in exposing their vulner-ability when offered blandishments to furnish confession evidence against a fellow prisoner. Such influences may emanate directly or indirectly from the police who may feel frustrated by the prospect of not being able to adduce enough evidence against an accused in custody, particularly where the allegation is of a high profile crime. The evidence is at once easy to manufacture, potentially compelling and difficult to disprove. Yet the defence may have little means of discovering if there is a secret confiding relationship between the informer/witness and the police if the police choose to conceal its existence. If, however, rumours circulate and in order to pre-empt an attempt to discredit their witness in court the prosecution successfully seek a Public Interest Immunity certificate in relation to the prior existing informer status of a prison confession witness the defence will be stymied in their attempts to establish a questionable background to the evidence of confession.

46 Dein, [2002] Crim.L.R., at p. 634. 47 See ibid., p.636, for a review of the arguments on disclosure.48 R v Cheltenham JJ, ex p Secretary of State for Trade [1977] 1 WLR 95.

VII. FORMAL SAFEGUARDS

A confession may be suspect for one of two possible reasons. First, while the confession may undeniably have been uttered it may be unreliable as a testament of guilt in consequence of the circumstances in which it was uttered, in particular the mental state of the accused at the time. Second, the evidence as to its making may be unreliable. In either case there are three possible legal mechanisms which may be chosen to guard against the possibility of a conviction being supported only by a confession which is suspect. The introduction of a strict rule may be envisaged which prohibits any conviction based on a confession unsupported by other evidence. Second, without introducing a strict prohibition it may suffice simply to apply the rule requiring the trial judge to stop the trial where the evidence of guilt, though technically sufficient, is tennuous.49 This would allow some confessions to sustain a conviction, although unsupported by other evidence, by reason of the particular cogency of the evidence proving that it was made and demonstrating the reliability of the accused in attesting to his own guilt. Third, rules may be laid down for a formulation of warning to the jury against convicting on confessions unsupported by evidence of another kind.

The complex issues involved in the debate as to whether confession evidence unsupported by evidence of another kind should be permitted to justify a conviction need not be discussed or reviewed here. They are set out exhaustively in the author’s work Confession Evidence, cited earlier.50

The question whether judges should be required to give juries a special warning about the dangers implicit in accepting evidence from a co-inmate as to a cell confession is part of a general topic which has long exercised the courts. The relevant authorities will be referred to in the context of the account of the Michael Stone case which follows.

VIII. THE MICHAEL STONE CASE: AN UNCONVINCING CONVICTION

The Chillenden murdersOn 9 July, 1996, at about 4.00 pm, Dr Lin Russell and her daughters Megan, aged six, and Josie, aged nine, were walking home with the family dog, Lucy, from a school swimming gala at Chillenden, near Canterbury in Kent, when they were waylaid in Cherry Garden Lane, an unmade track

49 R v Galbraith (1981) 73 Cr.App.R. 124.50 See note 9, above; paras. 1-023 to 1-044.

near a cornfield, by a man getting out of a car. He took them into a thicket, tied them up with torn towels and shoe laces, blindfolded them and savagely beat the head of each of them with a hammer, smashing their skulls to a greater or lesser degree. Dr Russell and Megan died in the attack but Josie, although left for dead, survived. The murderer evern killed the dog. When they failed to return home Dr Russell’s husband raised the alarm and the bodies and Josie were discovered at 12.30 next morning. Stone was arrested a year later.

Josie Russell’s memory of the attackThe injuries which Josie suffered caused her to have significant difficulty in expressing herself, but two months after the attack she indicated to her father that she had some recollection of what had happened. A speech and language therapist began a series of sessions and she was interviewed by the police several times from September onwards. She indicated that, while in Cherry Garden Lane, she had seen a car to whose driver she had waved, and it was that car which had later stopped across their path. The assailant, who was alone, had hurt her head with a hammer, had tied her hands behind her back with a shoe lace and had tied her mother with a blue towel which he had torn. She had run away, but the man had run after her, hitting her on the head, and had brought her back to the others. Later, she gave further details of the man chasing her, and hitting and tying up her mother. Later still, when she was able to speak, she stated that the man had asked for money, although it is to be noted that Dr Russell in fact had no purse or handbag with her.

Descriptions of suspect and car The chief eyewitness was of course Josie Russell who gave direct evidence of the assailant. Other witnesses described men who had apparently been seen in the vicinity at around the time the murders took place. Descriptions were also given by the witnesses of a car driven by the assailant (in Josie Russell’s case) or suspects in the vicinity.

Josie Russell Josie Russell described the attacker as having short yellow hair, clean-shaven, not wearing spectacles, medium build, aged about 25 and the slightly taller than her father, who is about 6ft. She described his car as brown or red and clean and stated that he was alone.

Other witnesses A number of witnesses described having seen possible suspects in the vicinity at about the time of the murders:

At about 4.10 pm a gardener saw what he thought was a beige Escort,

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parked by a tree with the boot open. Standing beside it was a man whom he described as about 5 feet 6, with quite short close cut light-hair, wiry, and aged 35-40. He seemed agitated and was looking across the field towards Chillenden. Later, when the witness returned with his dog, he saw, near the tree, a string bag with strips of blue towelling which had been pushed into a hedge.

At about 4.30 pm a local woman had seen a clean-shaven man of medium build wearing a dark blue baseball cap and carrying a hammer.

At about 4.50 pm another witness saw a beige car, possibly a 10 year old Escort, near a place called Rowling Court. The white male driver had short fair hair and was aged about 30 to 40. Near a tree at Rowling Court six separate bloodstained strips of towel were later found which, when fitted together, formed one complete towel identified as belonging to the Russell family. (DNA analysis revealed that the bloodstaining and some hairs which were recovered from the towelling were consistent with having come from the three victims.)

Another local woman saw two men near the murder scene, one with short blond hair “like Robert Redford,” and the other with darker hair and carrying a clipboard. She also saw a rust-coloured Ford Escort containing three young men. One had a “Gazza” haircut and wore a red T-shirt; another wore a baseball cap; the third resembled an E-fit likeness published by the police.

Nicola Burchell The E-fit was one of two which had been prepared with the assistance of a motorist, Nicola Burchell. She had been driving home from work just before 4.45 pm when, at a junction near the scene of the attack, a light beige car like an old Escort had pulled out in front of her from a dirt track, causing her to slow down. She followed it bumper to bumper and the driver kept looking in his wing mirror. She described the driver as round faced with chubby cheeks, aged 30 to 35, short gingery blond hair and a fair complexion.

Comparison of witness descriptions with Stone and Levi BellfieldWitness descriptions and StoneIt is interesting to compare Stone’s physical appearance with the description given by Josie Russell of the assailant and with the descriptions given by various eyewitnesses

of possible suspects seen in the vicinity at the time of the murders.

Height Stone is said to be 5ft 7in, so significantly shorter than Josie’s father, rather than “slightly taller.” Of course, to a child a frightening assailant might well appear taller than in fact he is, though the reference to the familiar figure of her father would seem to reduce the impact of that distracting factor. The gardener’s estimate of the suspect’s height (about 5 ft 6 in) could match Stone.

Build From the images of Stone depicted in the first row of those set out below (which have often featured in the national press and are taken from Google images) his build might perhaps be described as mesomorphic (medium), a build consistent with one of Josie’s descriptions and that by the first local woman. The description of build given by the gardener could match Stone, from some of whose pictures he might be judged to be on the wiry side.

Age Whereas Josie described the murderer as about 25, at the time of the murders Stone was 36 years old although here the difference may not be all that significant. The gardener’s description of his suspect’s age would tally with that of Stone, as would Nicola Burchell’s estimate.

Face Nicola Burchell’s description of the face of the man she saw as round might at a pinch just about feasibly match Stone’s, although it is perhaps more long than round, but to describe Stone’s cheeks as “chubby” would be fanciful.

Hair Apart from the two photographs of Stone with a shaven head the shade of his hair and its appearance in the images are not inconsistent with the description given of him by investigative journalist Jo-Ann Goodwin, who stated he had severely receding mid-brown hair, although the colour as shown in the photographs is perhaps inconclusive. Yet curiously, in their 2005 judgment the Court of Appeal stated that he shared with the driver the characteristic of “short blond hair” (para. 94). The judges of the Court of Appeal had Stone sitting in the dock a few feet away but the combined natural January and artificial lighting in the courtrooms at the Royal Courts of Justice is never all that bright. In any event, the term “blond” can refer to a range of shades but of much greater significance is the fact that Josie Russell described the attacker’s hair as “yellow,” which Stone’s hair most assuredly is not. One might ask whether perhaps the judges’ observation of Stone’s hair as they observed him in court may to some extent have been unconsciously coloured (if one may be forgiven for using that verb) – or influenced

– by Josie’s description. Similarly, Josie’s description of the assailant’s hair as spiky certainly does not match Stone’s hair. The gardener and the Rowling Court witness both described the relevant person as having short, light or fair hair. The second local woman spoke of one of the two men she noticed as having short blond hair and Nicola Burchell referred to short gingery blond hair. As to colour these descriptions do not seem to match the photographs of Stone, though the photographs are perhaps less reliable as to hair colour than Jo-Ann Goodwin’s description.

Witness descriptions and BellfieldHeight Very significantly, Bellfield is 6 ft

1 in tall, exactly the height to match Josie’s description of the assailant’s height as slightly taller than her father Shaun.

Build The description given by Josie Russell of the assailant as of medium build and that same description of the suspect given by the first local woman plainly does not match Bellfield, the photographs of whom show him to be on the corpulent side. It has been reported that Bellfield weighs of the order of 20 stone (eg Wright and Greenwood, above). The description given by the gardener of the man he saw as wiry clearly does not match Bellfield in recent times. On the other hand, the third photograph from the left in the array set out below, dating it is understood from roughly the period of the murder, shows him to be relatively lean in the face at least, and suggests he may have been leaner in the body in those days.

Face From the photographs of Bellfield set out in the bottom row of those below it can be seen that Nicola Burchell’s description of the man’s face as round with chubby cheeks would clearly match Bellfield in more recent times.

Age As to age, Bellfield is now 47, so the description by Josie of the assailant’s age as about 25 would tally but the gardener and the Rowling Court witness described men about 10 years older than Bellfield would have been at the time.

Hair The question of hair colour is problematical. Whereas the photographs appear to show brown hair (albeit with what may be the slightest suggestion of a lighter tinge in three of the photographs but with no such suggestion in the picture of him with two of his many children) the court artist’s impression of Bellfield clearly conveys a yellowish or gingery colour. Two of the photographs show him with what can only be described as spiky hair, exactly matching Josie’s description.

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Michael Stone

E-fit

Levi Bellfield

Stone, Bellfield, and the E-fit imageIt can be confidently asserted that one might be hard-pressed to notice a resemblance between the E-fit and Stone. However, comparing the photographs of Bellfield and the E-fit it may be said that what is most striking is a resemblance around the eyes, with not dissimilar eyebrows. The hair colour of the E-fit is yellowish or ginger and could match the colour of Bellfield’s hair in the artist’s impression but the shape of the forehead is different from Bellfield’s. However although the E-fit face could hardly be described as chubby Bellfield’s face in the right hand photograph, upper row, is leaner than in the other photographs and he appears younger.How Stone came to be arrestedthe role of Dr Philip SugarmanOn the first anniversary of the murders the E-fit was shown on the BBC TV programme Crimewatch. It was watched by Stone’s psychiatrist, Dr Philip Sugarman, who telephoned the police because he felt the E-fit bore a strong resemblance to his patient, although, as he said, the hair was completely wrong. In fact the E-fit depicted a full fringe. Stone’s arrest followed on 17 July 1997, a week after the Crimewatch screening.

During Stone’s first trial journalists were told in private briefings by senior police

sources that Dr Sugarman, who was not called as a witness, had reported that a few days before the murders Stone visited the Trevor Gibbens Unit in Maidstone, confided to him fantasies reminiscent of the murders, and had sought, but had been refused, in-patient admission.51 The briefings were mentioned by Jo-Ann Goodwin in her Daily Mail piece of 13 March, 1999, in which it was stated that Dr Sugarman had reported Stone talking of killing women and children and murdering people in the woods using a hammer and had given his opinion that Stone was a perfect fit for the police psychological profile. The Mail article prompted a call from Dr Sugarman, who was adamant that he had spoken to the police only about the E-fit likeness.52 The revival of the issue presumably prompted Dr Sugarman to contact The Times and, on 16 March 1999, the paper acknowledged that he had never even had a consultation with Stone at that particular time and apologised for any implication that he had failed in his duty to take the necessary steps to protect the public. It appears it must have been a psychiatric nurse, Margaret Stuart, whom Stone actually saw days before the murders, because at the retrial it was sought to call her to attest to the fact that five days before the murders Stone had uttered threats to kill someone with a hammer. In the event her evidence was ruled as inadmissible.53 Press accounts do not reveal why but it is significant that a colleague of Dr Sugarman was insistent in telling Jo-Ann Goodwin that during all the years of treatment Stone said very little about an inner fantasy life.54 It is curious that he should suddenly do so in such graphic detail, not to his regular doctor, but to a nurse who had belatedly come forward only after the police had been shown up for giving wholly misleading briefings.55

Stone’s carAlthough at least two of the eyewitnesses described a beige car and friends of Stone said that he had once driven a beige car it was not part of the prosecution case that the killer’s car was beige, presumably because Josie Russell described a red car. Stone’s aunt gave evidence that, between May and

51 See, eg, The Times, 24.10.98.52 See Jo-Ann Goodwin, Daily Mail, 24.3.99.53 See The Sun, 5.10.01.54 Daily Mail, 24.3.99.55 The nurse’s claim was discussed in an independent report chaired by Robert Francis QC into the failings of the healthcare profession with regard to Stone’s mental condition prior to the murders: see national press for 26.09.06 on the report’s publication.

June 1996, he had given her a lift in a very dirty old car, which was dirty beige inside and looked a dirty red outside. (In interview Stone denied giving her a lift in a red car.) There was evidence that he often changed his cars, and they were generally old ones. Two witnesses described seeing him in various cars, red, green, white and beige during the summer of 1996. In interview following his arrest in July 1997 Stone denied having owned a beige car over the previous two years.

Significantly, records showed that he had been stopped by police in a white Toyota Tercel on July 5 and 16, 1996, that is on days straddling the killings. The prosecution could provide no answer for the fact that later minute scientific examination of the car proved entirely negative.56 The Court of Appeal referred to evidence (though not the provenance) that it was Stone’s habit to carry a variety of tools, including a hammer in whichever car he was driving.57 When interviewed after his arrest he denied carrying a hammer in his car.

Bellfield’s car and its link with KentAt least two of the vicinity witnesses described a person who may have been the killer driving a beige Ford Escort. At the time of the Chillenden murders Bellfield was driving an E-registered red Ford Sierra Sapphire and according to his former girl friend Emma Mills he was accustomed to driving to Kent in the 1990s in order to sell drugs and work as a wheel clamper. In themselves these facts are not of particular significance but provide some support for suspicions against him.

The absence of identification evidence No witness made a positive identification at an identification parade. Nicola Burchell, the motorist who had helped in the compilation of the E-fit of the driver of the beige Escort, attended a parade 14 months after the murders.58 She was unable to make a positive identification and would go no further than to say that Stone “looks very familiar. I don’t know why. There is just something about him.” In evidence under cross-examination, she conceded that this could be because he reminded her of an old acquaintance. Her tentative “identification” proved to be of some significance in the

56 It may be noted that although itemising a number of circumstantially incriminating features of the case the Court of Appeal made no mention at all of this important exculpatory factor. 57 [2005] EWCA Crim 105, para.8.58 See a report in The Sun, 23.09.97, mentioning that a “woman motorist” had taken part in an identification parade.

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light of the nature of the alleged cell confession evidence on which the Crown based their case against Stone.

When Josie Russell was shown the E-fits she recognised them as being consistent with the appearance of the attacker but she was unable to make an identification of Stone at a parade (although at that time she was still severely traumatised). The day after the first trial ended The Sun newspaper published a photograph of Stone taken for his bus pass days after the murders and it was reported that when Josie saw the photograph in the paper she “jumped up” and said “It’s him!”59 Clearly more prejudicial than probative, evidence of the episode was ruled inadmissible at the retrial.

Conflicting evidence about supposed blood marks on Stone’s clothing on the day after the murderAn associate of Stone, Lawrence Calder and his partner Sheree Batt, were called to give evidence about a visit by Stone to their house, between 11.00 am and 3.00 pm on the day after the Russell murders. Calder was a drug user and habitual offender and at the time of the first trial was in prison for deception. He alleged that Stone had turned up at his house in the Toyota and had spots of blood down the front of the white T-shirt he had on under a zip-up top and a large area of blood on the groin. He claimed to have been in a fight. Batt, on the other hand, remembered a few spots of blood on the neck of his T-shirt.

Bearing in mind that they were giving their evidence over two years after the murders it is noteworthy that Calder stated that the day in question was in August (and not July 10) but in cross-examination Calder pleaded he was “no good on dates” and anyway admitted having previously lied to the police that he had been with Stone on the day of the murders until about 5 or 6 pm.

Sheree Batt said that the day of Stone’s visit was “two or three” weeks before July 24. From the national press accounts of the trial it was not apparent why that date was significant. However, after the first trial her mother Jean Batt was reported by Jo-Ann Goodwin to have stated that the day Stone had blood on his T-shirt was July 23, which she remembered because it was the day before she visited her son Kerry in prison. 60

Presumably there was some connection between that visit and Stone’s visit but the reports do not indicate what it was. In any event, Jean Batt maintained that it was the police who had “rounded off” the date for

59 The Sun, 5.10.01.60 Daily Mail 24.3.99

her daughter because Sheree could not remember it She also stated that the police tried to induce her to support Sheree’s account with the offer of a financial reward and their help in an appeal against a drugs conviction.

Stone’s supposed knowledge of the district and the theft of a lawnmower In interview Stone denied knowing the area in which the murders had been committed but there was evidence that he did in fact know the area and had lived nearby when younger. At his first appeal it was contended that at best the evidence disclosed a knowledge of the locality of the murders which could have been obtained when Stone was resident in a children’s home.61

The Court of Appeal referred to the fact (though not the provenance) that in the early 1990s he was sufficiently familiar with the countryside to be able to give directions without a map, when drivng around the area.62 Stone was known to have stolen lawnmowers from isolated homes in Kent and an orange one was taken from a caravan in Chillenden on the day of the Russell murders. It was alleged that three days later Stone offered an orange lawnmower to his aunt for £10 but because she had not seen the machine and so could not say if it resembled the stolen petrol-driven Flymo the lawnmower evidence was excluded.

The notable absence of any forensic linkIt has already been mentioned that Stone’s car betrayed no microscopic evidence of any link with the murders. Equally, very little microscopic evidence was recovered from the murder scene, which was surprising given the extreme savagery of the killings.

Reference has already been made to DNA evidence consistent with a link between the victims and strips of towelling found near the location of the sighting of a possible suspect. That evidence went to support the contention that the person seen by the witnesses was the killer but it can hardly demonstrate that Stone was the person seen.

Of more signficance four hairs were found on Josie Russell’s beach shoes. Red fibres were found on or around Lin’s body and more red fibres were found on a pair of blue tights used to tie one of the girls.

Neither the hairs nor the red fibres came from Stone, nor from anyone in his family or immediate family, and they did not come from the Russells.

Tests established that a single blood-stained fingerprint found on a lunchbox belonging to the girls could not have been

61 The Times, 7.2.01.62 [2005] EWCA Crim 105, para.8.

Stone’s. Because the print was smeared it was impossible to rule out that it may have been made by Lin Russell, although it was said to be difficult to conceive of the circumstances in which she could have left it.

It is an undoubted curiosity that none of these exculpatory facts was even mentioned in the judgment of the Court of Appeal when it upheld Stone’s conviction on his re-trial.

Link through Stone’s drug useThe black boot lace found at the sceneA black boot lace 99 centimetres long and knotted tightly in three places was found 45 metres from the bodies in circumstances suggesting that it had been dropped accidentally by the killer. It carried traces of blood from both girls and post mortem evidence showed that there were injuries to Megan’s neck consistent with the use of the boot lace to tie her. It was given exhibit designation SRG/27 by Kent Police Crime Scene Investigator Griffiths.

Evidence of Stone’s use of a tourniquet to inject heroinIn dismissing Stone’s 2005 appeal the Court of Appeal referred to evidence (but not its provenance) that Stone was a heroin addict who kept syringes and a boot lace in his car.63 The lace was about two or three feet long, with a knotted loop at one end and two or three knots along its length and, the Court of Appeal noted (again without referring to the provenance), he had been seen to use a lace five or six times, wrapped around his bicep to raise a vein for the purposes of injection. Expert evidence was called that the boot lace found at the scene was in every way consistent with its being a tourniquet of the kind commonly employed by abusers of heroin while gripping it in their teeth during self-administration of an injection. In interview Stone admitted injecting heroin and using a rubber tourniquet and sometimes a tie but not, he said at first, a shoe lace or boot lace. Later, he said he might have used a white shoe lace, once, and then, that he might have used it a few times. He did not remember a black shoe lace.

Tests on boot lace for DNA revealed no link with Michael StoneContinuity history of the boot lace in FSS custody: the Allard report The continuity history of the boot lace SRG/27 while in the hands of the Forensic Science Service (FSS) was set out in a Casework Examination Report prepared for the Criminal Cases Review Commission by FSS scientist Julia

63[2005] EWCA Crim 105, para.8

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Allard and signed off on October 19, 2010.64

Appended to Ms Allard’s report was a full tabulated chronology of examinations relating to the lace or fragments taken from it between July 1997, when it was submitted to the FSS laboratory at Aldermaston and April 2000. Various photographs accompanied the report.

Staged removal of fragments for testing When first submitted to the laboratory the lace measured 97.5 cm in length. It was received with one cut end and three knots near the middle (which presumably accounted for the contrast with 99 cm given as the overall length). Between August 1996 and January 1998 it was examined under the direction of FSS scientist Roger Mann. The original ends were removed by him and placed in two poly bags labelled “end A” and “end B.” Ms Allard took over the case on January 31, 1998, when Roger Mann left the FSS. Her notes show that in April 1998 the item consisted of a length of black lace, ten areas of which had been marked and removed, and six pieces each in poly bags labelled respectively end A, end B, warp 1, warp 2, warp 3, weft+edge. By May 1998 60 areas of the lace had been sampled for DNA tests and by July a further 15 areas had been sampled. Each area would have been only a few square millimetres so even after sampling 75 areas for DNA a significant proportion of the lace remained, confirmed by photographs.

Boot lace and six pieces returned to Kent Police At the conclusion of her testing procedures in September 1998 Ms Allard packaged the lace minus the 75 small extracts, together with the six pieces in poly bags and returned them to the FSS London laboratory exhibit store on September 22, 1998, from where records show it was collected by PC Kelly of Kent Police next day. In her report she observed that although the case notes do not specifically state as much, her usual practice would have been to seal the lace and all of the pieces together in one package. There was nothing to suggest that the length of lace was separated from the poly bags containing the small pieces.

Further DNA tests Ms Allard reports that further DNA tests were carried out later in 1998 (ie after Sept 23) and in 1999. These were on DNA extracts which had been retained at the laboratory, not the original lace. Details of these subsequent exami-nations and continuity up to 1999 were set out in the appendix.

FindingsSaliva residues were found on 64 areas along its length lace but tests for DNA on

64 Ref. FSS-GF-680, issue 4.

the removed pieces revealed no link with Stone. Again, curiously the Court of Appeal were silent about this. On the other hand, the DNA traces found on the pieces may have been insufficient for the existing technology to yield a DNA profile and the tests could not therefore be said to be exculpatory in the strict sense of the word. Moreover, there may have been serviceable DNA on the remaining intact lace which was not tested.

Subsequent tests: Operation CubeIn October 2006 the FSS launched a “revolutionary new” technique of DNA identification known as “DNABoost,” described as the most important advance since the introduction in 1999 of Low Copy Number testing.65 The latter technique facilitated identification by examination of microscopic samples but by 2006 a number of serious misgivings had been expressed about its reliability and “Operation Cube” was therefore set up nationally to study its validity.66 During the 14 month inquiry some 2,500 investigations were re-analysed, as a result of which it was claimed that dozens of people who had been cleared of charges, including murder and rape, might yet face prosecution. Although Low Copy Number was introduced after the original Chillenden murder investigation extracts of the lace retained by FSS were tested again under the auspices of Operation Cube in December 2007 in the hope of making a positive identification from the DNA in the saliva. In the event nothing of further significance came to light.

Michael Stone seeks a review by the Criminal Cases Review Commission In the wake of his unsuccessful appeal against conviction at the second trial Michael Stone applied to the Criminal Cases Review Commission for a review of his case, requesting further forensic examination of various items, including in particular the largely intact length of boot lace, using the latest DNA technology.67 He subsequently instructed a new solicitor, Paul Bacon of the firm of Bryan and Armstrong of Mansfield, who invited the Commission to include within their remit the possibility of considering whether further DNA testing might lead to the identification of “another significant person,” ie, Bellfield. However, in the event – as will shortly be seen – there is now little prospect that that will ever now be feasible.

65 Hugh Muir, “DNA discovery may crack old murder cases,” The Guardian, 5.10.06. 66 Mark Townsend, “DNA scrutiny to prompt retrials,” The Observer, 23.12.07. 67 Application dated 11.05.06.

CCRC refuse a reference: no new material available On October 26, 2010 the CCRC decided that they would not be referring the case to the Court of Appeal. There seems to have been a very good explanation for the Commission’s decision. Quite simply there was no material to justify the re-opening of the appeal.

Appreciation of the key importance of the boot lace It was abundantly clear that of all the objects recovered from the scene the one which potentially offered the most compelling opportunity to cast light on the identity of the murderer was the boot lace, with its saliva traces and the fact that whoever used it to tie up the Chillenden victims had also almost certainly used it previously as a drug tourniquet. As Michael Stone had admitted employing that particular method to inject heroin, positive proof that his DNA was not on the boot lace would almost conclusively have exonerated him in the light of the other aspects of the evidence in the case. With techniques advancing all the time in the development of DNA detection and analysis all those involved in the case, and Kent Police in particular, would have been only too well aware of the importance of the boot lace. It is against the background of that undoubted awareness that events took a curious turn.A mysterious disappearanceQuery raised by the FSS  Kent Police duly sent the FSS what purported to be Exhibit SRG/27 but on May 4, 2010, FSS scientist Dr Jonathan Whitaker emailed the CCRC to point out that they had been expecting to receive from Kent Police the remains of the largely intact boot lace, with only the tiny areas removed as a result of the earlier work conducted. Yet all that had been sent, he stated, were six small fabric samples originally taken from the lace, each contained in its own self-seal poly bag, together with an empty exhibit packet bearing what appeared to be the original “CJA” label for SRG/27, the boot lace, but no boot lace.68 In subsequent exchanges with the Commission Dr Whitaker confirmed that the testing which had been envisaged for the boot lace could not be carried out on the six fabric extracts.69 In other words, the boot lace (and not the fragments) were indispensible for any further meaningful testing.

Kent Police response When asked by the Commission for their response Paul Phippin of Kent Police replied on May 21, 2010, that he had carried out a comprehensive search 68 CCRC, Statement of Reasons, para. 152. 69 Ibid, para 153.

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of police exhibit stores for the case but had found no additional material from SRG/27, and on the 28th he sent an email which repeated the declared belief of Crime Scene Investigator Griffiths that the boot lace had been “tested close to destruction.”70 Mr Phippin also stated that he had spoken to the original Senior Investigating Officer, whose recollection was that “every conceivable test” had been carried out on the boot lace “under the advice of Julia Allard and Jonathan Whitaker” of FSS, the most recent of which had been conducted under the Operation Cube” programme in December 2007. Finally Mr Phippin affirmed his belief that what had been sent to the Commission (for the purposes of further testing by the FSS) was all that had been originally returned to the police by the FSS. In other words, he was asserting, the FSS could not have returned the near complete length of boot lace to Kent Police after conducting the original tests in 1998.

FSS rejoinder As already mentioned, Julie Allard of the FSS in her report dated October 19, 2010, stated that the length of lace, minus the cut ends and the 75 small extracts which had been removed from it, was replaced in the original labelled packet and returned to the FSS laboratory in London, where records showed it was collected by PC Kelly of Kent Police on September 23, 1998. According to the CCRC she “conceded” in her report that this was not specifically stated in the case notes71

but, as we have seen, she asserted that it would have been her normal practice to seal the lace and the non-retained pieces together in one package. The clear position of FSS, then, was that since the six bags went back to Kent Police in 1998 so must the largely intact length of lace and would have remained in Kent Police custody until such time thereafter as it was lost or mislaid.

CCRC evaluation of the conflict of assertions It was clear that whereas the FSS were saying that the complete length of boot lace had been sent back to the police in 1998, Kent Police were asserting the contrary: namely that what had been sent to the FSS in 2010 was what had been received from the FSS in 1998. It followed that if the FSS were right the almost complete length of boot lace had been sent back to the police in 1998 and since it was never returned by the police to the FSS in 2010 it must have gone missing from the police exhibits store where it should have been retained. In the view of the Commission there was no possibility of reconciling the two positions

70 Ibid, para 154.71 Ibid, para 155 and 156.

and “no rational basis on which the Commission could prefer one version of events over the other” (para 157).

An objective assessment of the conflict over who lost the laceThe Commission may have felt the need for diplomacy in refusing to take sides and to avoid making a judicious assessment of the competing positions. The present author is hardly bound by any such compunction.

FSS account The first matter, then, to consider is Ms Allard’s assertion that the almost complete length of lace was sent back to Kent Police in 1998 after testing. Although in her report of October 19, 2010, she observed that the 1998 case notes do not explicitly refer to its having been returned there would be no reason to state the obvious. Forensic laboratories routinely return exhibits to submitting police forces after testing unless retained for some specific purpose. If an item is retained that will be noted down, not if it is returned. It would be odd to say the least if the six small fragments in individual polythene bags had been returned but the far more prominent near-complete bootlace negligently mislaid in the laboratory. Of course, had it been lost the scientists might have been tempted to cover up for their embarrassment by not mentioning or noting down the episode and hoping the loss would be attributed to subsequent police neglect. On the other hand, they would have been taking a not insignificant risk that the police would not be equally neglectful, would check the items on their being handed over and would point out the fact that the near-complete length of lace – the most prominent component of SRG/27 and a vital piece of evidence in the case – was missing from its labelled bag. We do not know how diligent an officer PC Kelly was. But it must be assumed that if not that officer, then certainly the investigating team, knowing how important the lace was to the prosecution case, would have been zealous in ensuring it had been safely returned to them. The absence of any record suggesting that in 1998 the lace had not been returned by FSS alone speaks volumes for its having been returned safely to the police. But there is another fact we refer to later which proves beyond doubt that it was indeed returned. Although it is true that there have been some very rare instances in which forensic scientists have been suspected of corrupt practice there is absolutely no reason to suppose that Allard and Whitaker were other than meticulous and utterly scrupulous.

Kent Police It is not suggested that the officers referred to by the CCRC in their

Statement of Reasons were not similarly proficient and honest. However, for them baldly to assert that if the near-complete length of boot lace was not sent to FSS in May 2010 then it could not have been sent by FSS to Kent Police in 1998 is as near a declaration of wishful thinking as it is possible to imagine. As an article of faith alone it is surely trumped by the eminently methodical scientist Ms Allard’s precise account of her usual practice, a practice in clear accord with the generality of procedure in the forensic science community. The suspicion of illicit removal of the lace from the exhibits store is hardly dispelled by the picture of Paul Phippin conducting his “comprehensive search” by going down on his hands and knees, deploying a torch under shelves, feeling behind stacks of bags or checking to see if the lace had not got lodged between files. If it was in a sealed package would it really have been likely to come adrift from the package as a result of rough handling? More to the point would have been an audit of records relating to the management of the exhibits store. It was presumably housed in secure premises, permanently staffed by an attendant, protected by CCTV surveillance and accessible only by authorised police personnel or members of civilian police staff. Only such a person could have removed the lace – only a person with awareness of its significance and the motivation to do so. Was a register maintained of those entering, giving the date and time and the purpose of the visit? Would anyone entering have been required to sign a register and would the register require a record of any exhibits retrieved? Did Mr Pippin conduct such an audit? Even if he did it would not have eliminated the possibility of theft.

“Tested to destruction” The reported belief of Crime Scene Investigator Griffiths that the lace had been “tested close to destruction” seems as lame as it is speculative. It is far from clear on what facts or assumptions he professed to base his belief and in any event is contradicted by the FSS response. It is difficult to envisage what tests would have involved such a degree if destruction. In any event the FSS were quite clear that most of the lace was left intact after the removal of a number of tiny pieces amounting to only a very small total area. It seems fair to conjecture that Griffiths was merely latching on to the expression “tested to destruction” as a catch phrase uncon-sciously to afford comfort to his no doubt embarrassed Kentish colleagues.

Conclusive proof that Kent Police last had custody before the lace dis-

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appeared  There is, however, one fact which proves that the lace was returned to Kent Police by FSS in 1998. It would have been taken to court for each in turn of the trials in 1998 and 2001 respectively so that it could be shown to the jury. Because of health risks it would almost certainly not have been removed from its packaging. Since therefore there would have been absolutely no legitimate reason to remove it in court or for any of the legal teams or the police to have done so after the conclusion of the second trial the lace and the six poly bags would almost certainly have remained packaged together at that stage. Since the six poly bags with fragments went back to the Kent Police exhibits store it follows that the lace had gone back too.

Conclusion Bearing in mind the keen awareness of Kent Police as to the potential importance of the boot lace, the enduringly high profile of the case and the fact that the police would have been invested with the heaviest burden of responsibility in safeguarding key exhibits the disappearance of the lace is extraordinary, not to say breathtaking. According to a press release by Bryan and Armstrong Solicitors on the decision of the CCRC, when told of this Michael Stone was not surprisingly “absolutely appalled.”72 He will not be alone. It is of course not unknown for exhibits to become detached from their packaging for innocent reasons and in consequence negligently mislaid. However, it may be contended that for the reasons developed in the previous paragraph the boot lace more than likely went missing from the exhibits store at some stage after the second trial. By the time the CCRC resolved to have the boot lace re-tested there would have been a widespread awareness of the rapid progress of the science of DNA detection and of its potential to destroy the Crown’s case against Michael Stone.

The significance of the total lack of forensic evidenceIn accordance with Lockhart’s Principle that “every contact leaves a trace” the Home Office pathologist readily conceded that the the murderer would have been bound to leave a trace of himself at the scene. The defence rightly therefore placed strong reliance on the absence of any scientific evidence linking Stone with the murders. However, the significance of the forensic evidence is not merely that it fails to implicate Stone, but that it points to the culpability of some other unidentified

72 26.10.10; http://www.ismichaelstoneguilty.info /m_s_stone_press_ release.pdf

person. In cross-examination the officer in the case, DCI Stevens, admitted that the police had failed to trace a number of suspects and suspect vehicles seen near the murder scene.

Stone’s alleged confessions to co-inmates in prisonIn police interviews running to around 1,000 questions Stone protested his innocence of the murders although he claimed to be unable to remember what he was doing at the time. (Presumably this was supposed to be suspicious in the context of such a high profile killing on the basis of the argument that everyone remembers what they were doing when Kennedy was shot). At the first trial evidence was given of Stone’s assertion that he had thrown away clothes he wore around the time of the murders because he had put on so much weight but this was excluded from the retrial.73

In contrast with his denials when interviewed by the police, if the prosecution were correct Stone had little comparable compunction about unburdening himself to at least three prisoners (and possibly as many as nine more) while on remand after his arrest and it was to these that the prosecution had to resort in the absence of concrete evidence.

The alleged confession to Damien DaleyIn both of Stone’s trials the prosecution relied principally on a more or less full blown confession he allegedly made to a fellow inmate, Damien Daley, while on remand in Canterbury prison. Daley, the “star” witness in the case, was known as the “Hard Man” of Canterbury Prison, and had convictions for robbery, burglary and assault. In Stone’s first trial reliance was also placed on incriminating comments he allegedly made to two other prisoners but these did not feature in the second trial. However, it was common ground in both trials that without the evidence of the confession to Daley there was no case against Stone.

The confessionIn September 1997 Damien Daley was in Cell 3 of the prison’s segregation unit because he was under investigation for taking money to “sort out other inmates’ problems.” On 23rd September Stone was brought into Cell 2, the next cell. It could not be disputed that Daley had no foreknowledge of this. According to Daley, at about 8.00 to 8.30 pm several other prisoners were screaming and shouting at

73 The Sun, 5.10.01.

Stone and asking him what he was in for. He replied robbery and intimidating witnesses but the shouting continued for 5 to 10 minutes until Daley told them to shut up and leave Stone alone. It was claimed that through a crack in a pipe which connected their cells Stone then thanked Daley and said he was his “mate.” Daley told him to shut up but carried on listening. Stone allegedly then mentioned “something about” an identity parade and he said “If it wasn't for that bitch, if she hadn't picked me out, I'd have been all right.”74 He began “rambling on about smashing eggs and the inside being mush or something.” Daley told him to be quiet.

He claimed that he did not really know what Stone was talking about but that he then started reading about the Chillenden murders in an edition of the Daily Mirror he had with him in his cell. The front page reproduced a photograph of Josie Russell and reported that she had attended an identification parade. The item noted that the result had not been revealed but stated that Crown Prosecution Lawyers were “now considering whether to charge a suspect.”

Daley claimed he had not appreciated that there had been a survivor and that it dawned on him that Stone was talking about the case. Accordingly he went back to the pipe and began to talk to Stone and claimed he was “dumbstruck” listening to what Stone had to say. He claimed Stone described tying up the victims with wet towels and a shoe lace or short lace although he said he didn't need to because they were out of the game anyway. Daley thought Stone called them paupers and that they “didn't have what he wanted.” Stone said something about one of them being disobedient in trying to run away but not getting very far and he referred to “whores and bitches.” He said the dog made more noise than they did. He talked about making someone watch, but they closed their eyes and he hit them. He talked about a swimming costume, which he had sniffed and had been aroused to an orgasm, or nearly orgasm. Daley said it was like being told a horror story. The conversation lasted about ten minutes and Daley claimed he was so upset by the confession that he told Stone to shut up and began punching the walls of his cell. He spoke of telling Stone that he was going to tell the “screws” and Stone replied that they wouldn’t believe him but that even if they did he, Stone, would be “nutted off,” that is

74 As quoted in press reports. In the transcript of the Court of Appeal judgment in 2005 he was quoted as having said “I’d been okay if that slag hadn’t picked me out” (para. 10).

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declared insane, and that he would be out and then it would be Daley’s children.

Confession aftermathOn the following morning after the alleged confession, the 24th September, Daley was ostensibly in such distress that he was moved to another cell (although evidence of his distress was excluded75). Prison officers gave evidence that on that same morning Daley asked to speak to them about the man in the next cell talking to him. They checked that it was possible to communicate along the pipe between the two cells without voices being raised. (Before Daley gave evidence in the second trial, and unknown to him, the jury had been on a view of the cells, to see whether and how communication could be carried along the pipe.)

An important aspect of Daley’s alleged behaviour after Stone had confessed was his claim that he consulted his uncle about the “criminal code that you don’t hurt women and kids and don’t talk to the police” and that his uncle assured him he would not be “grassing” by revealing what had been said by Stone.76 He then made a statement to the police on 26th September, which accorded with the evidence he ultimately gave.

Confession details already in the public domain or deducible from material in the public domainSeveral items in the confession tallied precisely with the Daily Mirror article and in both trials the prosecution conceded that there was nothing in the remarks which Daley attributed to Stone which was not already either in the public domain or capable of being inferred from material in the public domain. In other words, Daley could have put together the confession details from what he had read rather than from anything Stone had said to him. Relying on this point in his speech to the jury William Clegg QC for the defence described it as the classic hallmark of the fabricated confession.

Assumption that nothing in the press could have inspired Daley to invent Stone’s opening gambit The Court of Appeal believed that Daley could not have been inspired by anything in the newspapers to invent Stone’s angry comment about a woman identifying him. Prima facie the reason was straightforward:

75 Evidence of Dr Whiting, Canterbury prison senior medical oficer: see 2005 judgment, para. 40.76 It is now understood that the man he referred to as his uncle was not in fact related to him but was some sort of mentor.

the result of the parade had been withheld. Although it is not entirely clear which would-be identifier they had in mind they were almost certainly thinking of that in which the motorist Nicola Burchell had taken part. As already mentioned The Sun newspaper had merely reported in its edition of September 23 – the day of the alleged cell confession to Daley – that an unnamed witness had participated in an identification parade. This was evidently Nicola Burchell, who had said Stone looked very familiar to her. Stone would certainly have had her remark in mind and could conceivably have off-loaded his pent-up frustration to Daley the stranger.

On the other hand, contrary to the assumption of the appeal judges, it is very far from being inconceivable that Daley was mendaciously inspired to attribute the comment to Stone as a result of what had appeared in that day’s Daily Mirror, which of course the defence were able to argue was the inspiration for everything else in the alleged confession. If in fact the Daily Mirror was the trigger for concoction of Stone’s opening remark the lie would have been all too obvious. Since Stone had very definitely not been identified it would be difficult to understand why he should angrily have complained to a stranger that he had been.

The improbability of confessing to a co-inmate after seeking refuge from the risk of false claims of confessionIt is of considerable importance that Stone, as he claimed, was in the Canterbury segregation wing at his own request because prisoners at the previous prison where he had been on remand had apparently tried to attribute false confessions to him. In the words of defending counsel he had a deep-seated fear of prisoners making up false confessions against him because of the nature of the crime. After the first trial the Home Office did not demur when asked by Jo-Ann Goodwin to confirm that Stone had been moved to segregation expressly at his own request.77 This was apparently not disputed at the second trial.78 Yet, as counsel so graphically and succinctly observed in addressing the jury: “Having been put in isolation and segregation, you are being asked to believe that the first thing he does when he gets in his cell is start making a full confession to the man next door.”

77 Daily Mail, 13.3.99. 78 In their 2005 judgment, at para. 13, the Court of Appeal acknowledged that Stone had asked to be put in the segregation unit at his own request to protect himself from false stories of a confession. It appears, then, not to have been disputed.

If Stone did in truth make the opening remark Daley attributed to him while he may have been rash enough to go against his own ordinance in talking to Daley the expression of anger and frustration at being suspected is hardly indicative of guilt. Moreover, it would be by no means impossible that Stone’s inability to hold his tongue in mentioning his predicament was the trigger which inspired Daley to latch on to it in order to fabricate a confession.

Possible motives for concoction sugg-ested by the defence at various stagesSuggestion that Daley wished to gain advantage from the authorities In cross-examination at the first trial it had been put to Daley that he had been motivated to invent the confession by the hope or expectation that the prosecution would abandon charges against him of arson, rob bery and serious assault. Indeed, those charges had been dropped in the run-up to the first trial. Daley’s response had been to claim that it had never occurred to him that there was any connection with the dropping of the charges. Making no bones about the fact that he was a seasoned criminal and an inveterate liar,79 he insisted nevertheless that his motives were purely altruistic because of the nature of the crime. His general response was perceived to have struck a chord with the jury. In their 2005 judgment the Court of Appeal observed: 80

“At the first trial Daley had been cross-examined to suggest improper motive on two bases, both of which were ultimately abandoned. At the second trial counsel, as his note to this Court shows, had recognised that cross-examination on these lines would not be desirable and would have been, as Mr Sweeney put it ‘damnably and incontrovertibly rebutted.’. . . Defence counsel had seen at the first trial what happened when he suggested to Daley that he had been motivated by actual or perceived advantage. Accordingly, and no doubt, wisely, he deliberately avoided any such suggestion at the second trial.”

In the second trial the defence did not challenge Daley’s assertion during the course of his evidence in chief that before coming forward to make a statement he had obtained his uncle’s assurance that to do so

79 In a memorable exchange recalled by the Court of Appeal at para. 32 he stated “I lie to get by in life . . . I am a crook. That is what crooks do. They beg, borrow, steal and lie, however they can, to get by in life.”80 Paras. 69 and 86.

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would not make him a “grass” because the crime involved breaching the criminal code “that you don’t hurt woman and kids.” In re-examination Daley rounded off his explanation of why he was giving evidence with a flourish: “I just feel guilty about that little girl.” This was a remark which the Court of Appeal supposed “must have been devastating to the defence.”

Although at the second trial counsel did not put to Daley that he was motivated to lie in order to gain credit with the police or authorities he did make such a suggestion in his closing speech.81 However, the tactical decision to forego in cross-examination the suggestion of motive of the gain of advantage from the authorities had clear repercussions on the appeal submission that there should have been a direction on a possible motive of such gain.82

Suggestion that Daley wished to ingratiate himself with other inmatesIt was also part of the defence strategy to suggest that Daley knew he could gain kudos from his fellow inmates because the case involved an attack on women and children. In the first trial, counsel had felt free to make this suggestion to Daley explicitly and with the suggestion of the hope of advantage to be gained from the authorities it prompted the supposedly impressive response from Daley that his motives were purely altruistic. In the second trial it seems to have been hinted at in a much more circumspect manner, in effect disguised within the suggestion that his motive for invention may have been a distaste for Stone and the nature of the offences. Although the transcript of Daley’s cross-examination on the point is not available to the author its substance is tolerably clear from the 2005 judgment of the Court of Appeal.83 Referring to the “potential motive of his own prejudice against ‘nonces’84 and the further potential motive of currying favour with fellow prisoners who were similarly prejudiced,” the court observed: “This was an area where, in cross-examination, defence counsel, understand-ably trod delicately. He elicited that, in Daley’s eyes, the defendant was a ‘scumbag’ and in prison the defendant 81 2005 judgment, para. 53.82 On appeal it was submitted that there was a duty to give the jury a special direction that Daley was inherently unreliable because, inter alia, as an experienced criminal and a prisoner facing trial he would know he stood to benefit from assisting the police: see para. 61.83 Para. 90.84 This was presumably a reference to the fact that in the confession Stone had allegedly admitted achieving orgasm by sniffing a swimming costume.

would have every reason to watch his back.” (It was the latter concession which carried the implication that other prisoners would have applauded Daley for denouncing Stone.)

As with the suggestion of motive of gain from the police, although not put to Daley in cross-examination defending counsel in his closing speech did make the suggestion that Daley was motivated to lie by the wish to obtain kudos from other prisoners. As with the point about motive of gain of advantage from the authorities, that the defence chose to avoid making the head-on suggestion to Daley of motive to gain kudos from other prisoners did likewise have an impact on the submission that there should have been a direction to the jury about such a possible motive.

No specific warning required about possible motives to lie without an evidential basis

It was submitted on appeal that although it was only in counsel’s closing speech in the second trial that the suggestion had been made that Daley may have lied in order to gain advantage from the police or kudos from other prisoners, the judge’s duty to give a special warning as to the “inherent unreliability” of a co-prisoner’s evidence and the possibility of such motives did not cease simply because it had not been put to Daley in cross-examination. It was submitted that the general direction which the judge did give the jury about the need to exercise care in assessing Daley’s evidence was not adequate to the need for a special warning as to the potential unreliability of the particular type of evidence in question.85

Rejecting the submission the court stated:

“[I]n a case where the defence has deliberately not cross-examined the informant as to motive of hope of advantage, the law does not require the judge to tell the jury that, merely because the informant was a prisoner, there may have been such a motive. . . . We reject [the] submission that intrinsic concerns about a potential motive to gain advantage with the authorities are so great as to require a direction, even though defence counsel has not alleged any in cross-examination.”86

Very much in keeping with the thinking behind this passage the court also commented that “in a case where the defence has, for good reason, deliberately

85 See paras. 53 and 55. 86 See paras. 84, and 88.

not asked about motive, it is difficult to know what the judge is supposed to say.”87

On the other hand, the court do not appear to have been suggesting that the duty to give an appropriate warning arose merely where the witness had been cross-examined as to motive. The implication from what the court went on to say was that cross-examination had to produce a reply or response leaving open the possibility of motive. Referring to a passage in Beck expressing the desirability of an appropriate warning the court noted that that passage referred specifically to cases “where there is material to suggest that a witness’s evidence may be tainted by an improper motive.”88 Again, the court referred to the fact that in Pringle,89 and again in Benedetto90 (which involved a cell confession attested to by a co-prisoner with a bad character), the Privy Council had said that—

“indications that the evidence may be tainted by an improper motive, must be found in the evidence.”

Cross-examination in the first trial had elicited a scornful riposte from Daley. Had he been challenged to the same effect in the second trial the Court of Appeal would doubtless have held that his response left “no indication that his evidence was tainted by improper motive.” On the other hand, merely denying an ulterior motive would not necessarily remove an indication of its taint; the ebb and flow of cross-examination might reveal facts or leave unanswered questions from which the possibility of motive might reasonably be inferred. However, there would need to be some material basis for such an inference. In the first trial Daley’s assertion that it had never occurred to him that the charges he was facing had been dropped because of his evidence was never gainsaid and so no taint was indicated. Had the authorities admitted that charges had been dropped because of his evidence that would clearly have featured as an important plank of the whole defence. It may be that hidden influences connected with the Stone case were brought to bear in the disposal of those charges, but no evidence to that effect was uncovered (if ever even pursued).

Daley’s drug use and the suggestion of mental instability

87 Para. 79.88 Para. 89, citing [1982] 1 WLR 461, at p.469A, per Ackner LJ.89 [2003] UKPC 9, para. 31.90 [2003] 1WLR 1545, PC, at para. 34, per Lord Hope.

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The defence placed considerable emphasis on Daley’s proven history of instability and drug use. His instability clearly went to the issue of his reliability as a witness. The relevance of his drug use was essentially three-fold. First, it went to the issue of whether he had a motive for achieving release from the segregation unit. Second, it went to the issue of his reliabilty. Third, between the first trial and Stone’s appeal against his conviction after the second trial Daley was shown to have told a number of lies about his drug use and these went to the issue of his credibility.

Suggestion that concoction was a means of obtaining access to drugsMuch of the subject matter of Stone’s appeal in January 2005 related to the issue of Daley’s drug taking and addiction. An important aspect of this was the possibility canvassed on appeal that it may have provided direct motive for him to concoct a false confession by enabling him to obtain release from the segregation unit at Canterbury and reach a part of the prison were drugs were more readily available.91

However, although after the first trial there eventually emerged substantial evidence that Daley had become increasingly dependent on heroin, there was—

“no evidence whatever that Daley was suffering withdrawal symptoms when he was placed in the segregation unit on 9th September 1997, or in the following weeks. On the contrary, medical records from Canterbury prison, when Daley was in custody until 10th October 1997 were disclosed to the defence and gave no indication that Daley was suffering from any such symptoms. A statement from the Caterbury senior medical officer, Dr Whiting, which dealt with evidence of Daley’s distress post confession excluded by the trial judge, says that Daley was in good health on his arrival at Canterbury; and Daley’s statement that he was not taking any medication, seems to have been confirmed by the doctor on examination. An assessment sheet on 15th September, after Daley was placed on segregation, but a week before the alleged confession, recorded that there was no history of drug abuse, which is inconceivable had he been showing withdrawal symptoms at the time. . . . In reality, the only evidence of drug abuse, at or around the time when Daley said he heard the appellant confess, was that contained in disciplinary

91 Para. 31. It was of course true that after making the allegations Daley was moved from the segregation unit by the prison governor.

adjudications and reports, some weeks later, at Elmley Prison, which were disclosed to the defence and related to possible drug abuse, in October and December 1997.”92

Disclosure of these facts—amounting to the absence of any compelling need for Daley to get out of the segregation unit—had led to trial counsel’s tactical decision not to pursue movement out of segregation as a viable motive for concoction. The suggestion was nevertheless pursued on appeal, when it was contended that the judge was duty bound to warn the jury that Daley “had an obvious motive to win transfer out of segregation.”93

The submission was rejected, the court noting that it would “in any event, have been inconsistent with the case run at trial, namely that Daley had engineered getting into the segregation unit and stayed there as long as was needed to fake the confession.”94

Daley’s lies about his drug abuseA prominent feature of the history of the case was the gradual emergence as the years have passed of evidence of the extent of Daley’s drug use, although in the 2005 appeal the defence accepted that the failure of the authorities to make full early disclosure had been inadvertent.95 At the first trial he maintained that he had never taken heroin in prison. At the second trial information disclosed after the first trial about prison disciplinary findings against Daley in late 1997 exposed his attempt in the first trial to conceal his drug use as untruthful. The result was that he was forced to make limited admissions about taking pills which showed up as opiates during a drug test and which had led to his being disciplined and having to admit therefore to lying first time around.

He made a facile attempt to explain away his lies kin the first trial by claiming that they had been irrelevant to his evidence about the confession. He also claimed at first that in spite of being tested positive for heroin he had not taken the drug. However, when he was pressed about lying on the

92 Paras. 40 and 41.93 Para. 61.94 Para. 69. It may be observed that since Daley was already in the segregation unit when Stone arrived there it is not apparent how or why it was suggested at trial that Daley could have known in advance that Stone was going to put himself into segregation. Indeed, the court referred to the fact that “[t]he defence alleged preparation in circumstances where, on any view, it was pure chance that the defendant was placed in the cell next to Daley”: para 73.95 Para. 29.

issue of his drug habit and asked if the disciplinary finding had been a miscarriage of justice he specificially admitted having tried every drug and he made the now familiar response about being a crook and lying to get by in life because that was what crooks did, although on the confession he was not lying, he insisted. His no doubt sanctimonious attempt to disarm the jury in this way may well have had a certain meretricious appeal about it which perhaps invested him with a superficial veneer of frankness in the eyes of the jury. For all one can ever know it may have taken the sting out of the defence argument that his admitted lies rendered his evidence on the confession incapable of credit.

After the second trial information was disclosed which revealed graphically that Daley’s drug history was significantly greater than he had admitted in the second trial and exposed those limited admissions as a further attempt at deliberate concealment of the true extent of his drug history. It is unnecessary to give the details here. They were fully set out by the Court of Appeal in their judgment in January 2005.96

It was argued on appeal that the new information about Daley’s drug taking exposed the true dimension of his lying and that full disclosure before the second trial would have enabled the defence to discredit him as a liar with significantly greater impact on the jury. With the new material, it was argued, “the jury would have better appreciated the extent to which Daley was lying, not only because of his lies, but also because of the unreliability stemming from his drug addiction.”97

The court remained unpersuaded.98 It was accepted that the newly disclosed material undoubtedly provided evidence that Daley concealed an addiction to heroin and suggested a dependency on benzodiazapine in the form of diazepam and temazepam. It was accepted that in the absence of that material trial counsel had been unable to suggest such an addiction, as a result of which the jury remained ignorant of it. However, the court did not accept that the material carried the weight suggested by the defence and had to be viewed in the context of what Daley admitted about himself at trial. While the new material showed a dependency on drugs and brought into sharper focus the lies Daley told, in the end it made no material difference. It must have been obvious to the jury that Daley was

96 Paras. 34 -35.97 Para. 36. 98 See paras. 37-43

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deeply flawed, a hardened criminal who on his own admission had taken every type of drug and who lied when it suited him, as when at his first trial he had lied specifically about not taking heroin because he thought it had no relevance to the evidence which he gave. In the light of his admissions of lying, and about taking heroin, evidence that he lied to a greater extent than was apparent at the time of the second trial, did not significantly affect the quality of his evidence. The jury was well aware that he was not only prepared to lie, but to do so on oath. In those circumstances, the additional material showing addiction added little of significance and certainly lacked such sufficient weight to affect the safety of the jury’s conclusion that Daley was telling the truth about the confession.

Reliance was also placed upon the fact that in April 2004 Daley had been tried and convicted of possessing heroin with intent to supply. His defence of simple possession had been based on his addiction, but intelligence material showed the extent to which his denials were false. Dealing with this and the other new material the Court of Appeal stated, perhaps with some justice:

“[W]e do not think the fact that there now exists a further example of Daley’s unwillingness to lie on oath diminishes the quality of Daley’s evidence to any greater degree than must have been apparent to the jury. It is, as Mr Sweeney remarked, merely ‘more of the same’. . . . Looking at the new material as a whole, in the context of what took place at trial, we are unpersuaded that it significantly devalues Daley’s evidence so as to cast doubt on the safety of the verdicts. This was not a case of a witness who appeared to the jury to be of impeccable status, but is subsequently shown to have been discredited. The contrast with cases such as R v Twitchell [2000] 1 Cr. App. R. 373, relating to police officers, is stark. The jury knew the nature of the source of the key evidence in the case. Daley was dishonest, a criminal with an ability to lie when it suited him, even on oath, and had taken every kind of drug. The new material merely confirms what must have been obvious to the jury.”99

Reports which the defence submitted indicated Daley’s “bizarre behaviour and mental instability”100

In March 2001, before the second trial, the defence received disclosure containing a reference to Daley’s activities leading up to

99 Paras. 48-49.100 See paras. 44-47.

his arrest for criminal damage in May 1998 on the anniversary of his father’s death (which had occurred while he was in custody), and a brief reference to his behaviour and condition on that occasion. However, until well after the second trial they remained unaware of the terms of the interview following that arrest, during which Daley was recorded as saying “My head is not my head sort of thing . . . I do bang my head because it’s a thudding feeling . . . The whole situation has been like one big dream” and remembering “whacking the ’phone across me head and hearing things.” It was argued that this amounted to bizarre behaviour and attested to his mental instability. It was apparent from his own statements and those of a paramedic and a custody officer that he had been drinking heavily for two or three days before his arrest and he had bitten a head rest in the ambulance, dialled the telephone number of his deceased mother and smashed the telephone. However, in the view of the Court of Appeal this behaviour was indicative of drink, not mental instability.

In early March 1998 Daley had been referred by his general practitioner to a psychiatrist, the letter of reference stating that he had been seen in prison by a psychiatrist, that he had been prescribed diazepam and temazepam to control his agitation, and that he was depressed and anxious. However, the court noted that on investigation there was no evidence that he had been seen by the psychiatrist in prison or that he ever saw the psychiatrist to whom he had been referred or had had any further diagnosis or treatment. In the view of the court, the material was not evidence of mental instability, let alone such instability as to cast doubt on his veracity.

Extraneous material relating to Daley’s credibilty Allegation that Daley subsequently confess-ed his evidence was untrue After the second trial and for the purposes of appeal the defence obtained a statement from a former prisoner named Paul Gilheaney, who had come forward in 2004 to allege that Daley had recently confessed to him and other prisoners that his evidence against Stone was invented. In a lengthy and detailed analysis the Court of Appeal conclusively exposed Gilheaney’s account as “demonstrably false,” declined to admit his evidence and refused leave to appeal on the ground that it should be considered as fresh evidence.101

101 See paras. 16-26.

Incident in Folkstone In an interesting aside, it happened that within a few days of the ending of the first trial the Folkstone Herald carried a front-page story about a disturbance involving members of Daley’s family in which they berated him for giving false evidence against Stone. The police were said to have attended but Kent Police later told Jo-Ann Goodwin that no such incident had been logged and suggested that the journalist responsible for the story had been dismissed for making it up. In fact the editor stood by the story and stated that the journalist had since been promoted.102

Other confessions allegedly madeby Stone in gaolThe Thompson evidenceIn the first trial the prosecution called another prisoner, Barry Thompson, a man with convictions for dishonesty, deception and intimidating witnesses, to give evidence that while he was serving behind the hotplate/server counter in the segregation unit at Elmley Prison, Sheerness, he got into a heated argument with Stone, who, he claimed, told him, in an apparent reference to Josie Russell surviving the attack: “I made a mistake with her. I won’t make the same fucking mistake with you.”

The day after the first trial ended Thompson contacted the Daily Mirror, which on 26.10.98 carried an interview with him, in which he claimed that he had told a “pack of lies” to the court and hadn’t wanted to appear as a witness but thought the case against Stone was so thin he would be acquitted anyway. His explanation as to why he had changed his story could not be revealed “for legal reasons.”103

Subsequently, Thompson claimed that at the time of the trial both he and Daley were paid police informers104 although Daley denied he was one.105 In the light of Thompson’s retraction and his consequent unreliability and possibly also the fact that it had not been disclosed that he had been a police informant the Crown did not seek to support the conviction and a re-trial was ordered.106 Unsurprisingly enough, Thomp-son was not called as a witness.

The Jennings evidenceA third prisoner, Mark Jennings, serving life imprisnment for the murder of a barman, gave evidence that Stone, a friend of his,

102 Daily Mail, 13.3.99 and 24.3.99.103 See also The Times, 27.10.98; Daily Mail, 27.10.98, 13.3.99 and 24.3.99. 104 Jo-Ann Goodwin, Daily Mail, 29.1.01105 The Times, 7.2.01.106 Ibid. Daily Mail, 24.3.99.

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had visited him in prison. At his own trial he had unsuccessfully run the defence that he had merely been defending his girlfriend and had not realised the knife was in his hand. He stated that during their conversation Stone had suggested that he, Jennings, should have killed the witnesses in the public house and said that he himself would kill anyone, including women and children, if it would keep him out of prison. Denouncing that evidence as untrue, William Clegg QC for the defence said it had been given under the cloud of money, Jenning’s family having been given £5,000 with the promise of a further £10,000 for photographs and his story if Stone was convicted. Subsequently a former fellow prisoner of Jennings confided in a letter to Stone’s sister Barbara that Jennings had previously expressed a willingness to make up a confession by another prisoner, then appealing against a murder conviction, in order to hasten his own release.107 He was not called as a witness for the retrial.108

Other known allegations of confession by Stone in gaolReference has been made to the fact that before Stone applied to go into segregation at Canterbury prison other prisoners had apparently already tried to attribute false confessions to him. It has been reported that in all there may have been as many as nine prison confessions, of which those used were the “best three.”109 Investigations by Jo Ann Goodwin uncovered details of the circumstances in which an unnamed prisoner was induced by another prisoner to fabricate a confession by Stone, only to back out later.110

The curious episode involving Nurse GaleAllegations by co-inmates that an accused privately confessed to them are rightly regarded with suspicion. Perhaps the most dramatic and disturbing example of an alleged confession by Stone in prison came in fact not from a fellow prisoner at all but from Marie Gale, a nurse working at Elmley prison. The day after the quarrel between Stone and Thompson in the Elmley segregation unit it is understood that Nurse Gale arranged for Stone to be moved to the Health Care unit where she was working the night shift. Over a number of nights she purported to engage him in conversation, effectively amounting to an interrogation, and secretly recorded the exchanges on a

107 Daily Mail, 24.3.99.108 The Sun, 5.10.01.109 Daily Mail, 24.3.99.110 Ibid.

pocket tape-recorder. The day after each session she would deliver the latest recording to the murder squad led by DCI Stevens and would be directed as to what questions to ask Stone in the next session. Throughout the recorded sessions Stone robustly declared his innocence of the Chillenden killings but at one point, so she later stated, the machine stopped and she had to change the batteries. During that break in the record, she alleged, Stone told her that the police thought the motive was robbery but that the woman never even had a handbag on her. This was a fact which had not been released to the media and could not have been known to anyone but the murderer.

Presiding over the first trial, Kennedy J. excluded the alleged remark on the basis that the nurse had been used by the police to exploit her position as Stone's health carer in order to circumvent the strict interview requirements of PACE. One might wonder whether an abhorrence of the strategem was what really underlay the judge's thinking, where in fact the nurse was attempting no more than to take advantage of Stone's imprudence in talking to her. There have been many cases in which evidence has been allowed of alleged confessions obtained by eavesdropping.111 Had the episode gone to the jury the defence might have enjoyed a field day in commenting on how convenient the ostensible break in recording had been.

Nurse Gale also claimed that he had said “All I remember about that day is waking up. The next thing I knew I was waking up in bed again covered in blood.”112 It is difficult to comprehend how Stone could know something about the handbag if he remembered nothing about the day.

Stone’s silence in both trialsStone did not give evidence at either trial but because of his mental condition the jury in both trials were directed that no inference could be drawn from his silence. Nevertheless it was stressed by defending counsel that Stone had already given interviews to police running to 1,000 pages and that he had answered every question.

Cell confessions easy to concoct but difficult to disprove?Applying recent authority it was acknowledged by the Court of Appeal that in what counsel for the Crown described as the

111 see Wolchover, D. and Heaton-Armstrong, A. Confession Evidence, London: Sweet and Maxwell, 1996, pp.569-583112 See The Sun, 5.10.01. The episode may be compared with that of the psychiatric nurse Margaret Stuart, referred to above.

case of a “standard two line cell confession” there would generally be a need for the judge to point out to the jury that such confessions are often easy to concoct and difficult to disprove.113 However, with seemingly irrefutable logic, Rose LJ, Vice President of the Court of Appeal, observed in the judgment of the court:

“If an alleged confession, for whatever reason, would not have been easy to invent it would be absurd to require the judge to tell the jury that confessions are often easy to concoct.”114

The question was therefore whether the confession in the present case would or might have been easy to invent. In the court’s view there was no doubt about it—

“[T]he confession contained many points of detail which it would not have been easy to invent. Some were in the public domain, and others were capable of being deduced from material in the public domain. But the jury heard evidence both as to how much access Daley had to what was in the public domain and enabling them to assess how easy or difficult relevant deductions would have been for him, in the time scale available to him. In the circumstances, a direction that cell confessions are easy to concoct would have served no useful purpose and we reject the submission that it should have been given.”115

A glaring inconsistencyThis passage betrays a glaring inconsistency. As it reads, the court was clearly acknowledging the fundamental principle that its own view of the question easy or hard to concoct was ultimately subordinate to that of the jury. It ought to have followed from this that the court could properly make no assumption about the jury’s thinking which could have had any bearing on the appeal outcome. However, that is precisely what the court did purport to do, imposing its view of the issue easy or hard, so as to make a judgment on what the jury did or did not need to be told. That the court arguably fell into fundamental error is suggested by the simple axiom that the absurdity or appropriateness of giving a particular direction as to how the jury should approach certain evidence can hardly depend on making an assumption as to what view the jury exercising its sovereign

113 2005 judgment, para. 83, citing Pringle [2003] UKPC 9 and Bendetto v The Queen and Labrador v The Queen [2003] UKPC 27, [2003] 1 WLR 1545.114 Para. 84. 115 Para. 85.

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function will reach on that evidence. To argue otherwise is pure petitio principii.

Fundamental purpose of the directionThe real point of the direction, surely, is not to educate the jury on the state of the obvious but to underscore the risks involved in accepting evidence of a cell confession: that it is oral, made without authentication and in secret and attested to by a person who is likely to be of dubious credibility with possible unspecified ulterior motives unconnected with the imparting of truth. In the context of such a confession it reminds them of the defendant’s unenviable predicament in having to prove the negative of what may be an only too easily alleged positive.

Easy or hard to invent?Even if the court were entitled to impose their view as to ease or difficulty of invention on the question whether a warning was appropriate or absurd it is far from certain that details of the confession were as hard to manufacture as the court were prepared to assume. The series of disjointed utterances attributed by Daley to Stone were obviously a little more elaborate than the “standard two-line confession” (insofar as there is any standard about these matters, not wishing to take Nigel Sweeney too literally—or too seriously). Clearly their concoction would have required a little thought, if not very much imagination; indeed, as defending counsel suggested to Daley “he must have boned up on what was in the public domain”116 On the other hand, this was hardly rocket science. It surely would not have taken literary genius for a determined liar to weave out of the Daily Mirror report what he imagined sounded like a convincing impression of the lunatic ramblings of a psychotic killer. The Court of Appeal appear to have made rather too much of the banalities of what went into the confession and rather too little of the potential of someone like Daley to indulge himself in a bit of saloon bar hamming.

Moreover, he had plenty of time to prepare his script: from the early evening of 23rd September to some time on the 26th, when he made his statement. Although the court acknowledged the delay factor they sought to minimise its impact by pointing to Daley’s wish to get his uncle’s blessing before making a statement.117 It is not known to the author when he was supposed to have spoken to his uncle, but whenever it was such a consultation would surely not have precluded continued improvement and 116 Ibid., para 72.117 Ibid, para. 73.

memorising of the final script until the actual moment of the making of the statement.

In declaring that a warning to the jury about the ease of concoction would have been absurd (because the detail in the confession would not have been easy to invent) it was quite fanciful of the court to suppose that any more than a very basic inventive skill was required to compile what Daley related. In short, the court exaggerated the supposed complexity of the confession and, with the greatest possible respect, seemed almost to be in thrall to the supposed simplemindedness of the witness.

In ConclusionThe Court of Appeal plainly enthused in itemising the various elements of suspicion.118 Yet those elements will not dispel the doubts which arise from such matters as–

the significant height disparity between Josie Russell’s description of the murderer and Stone’s height (6 ft 1 in as against 5 ft 7 in)

Josie’s description of the murderer’s hair as yellow and spiky contrasted with Stone’s hair

the absence of Stone’s DNA on the bootlace

the total absence of any relevant microscopic evidence from Stone’s car

the absence of any such evidence linking him to the murder scene

the finding of hairs there which did not belong to him or the Russells

the bloodstained fingerprint on one of the girl’s lunchbox which could not have been Stone’s and was very unlikely in the circumstances to have been made by Lin Russell

the absurdity of Stone confessing to Daley when he had just been moved into segregation at his own request to avoid contact with co-inmates who might want to allege he had confessed to them

the disappearance of the near complete length of boot lace from police custody at a time when in the light of continuing developments in DNA research tests on it could have led to Stone’s exoneration

It will be recalled that FSS consultant forensic scientist Dr Jonathan Whitaker had

118 Ibid.

said that the tests he had anticipated conducting on the largely intact bootlace could not be carried out on the six remaining fragments. That was the position in 2010. Whether advances since then or in the future would offer the promise of discovering the killer’s identity from DNA traces on the fragments remains to be seen. It is not known if the 75 separated areas which were originally retained and from which a number were later re-tested remain available and capable of furnishing the potential for meaningful re-testing.

It may not be particularly helpful to speculate how the authorities might react if developments in DNA identification in the future revealed the saliva on the lace to have been deposited by an identifiable third party. So tenaciously have the police and prosecution clung to the absurdity of the Daley confession that their response would doubtless run along the lines of Stone having inherited the lace from one of his drug cronies. In the end we return to the fact that the confession was not only not corroborated but uncorroborated in circumstances in which there would have been a high order of expectation that traces of Stone’s tissue and body fluids would have been found at the location had he been the murderer.

To paraphrase the words of Paul Bacon, Stone’s current solicitor, it has to be asked whether it is in the least bit conceivable that a man who has a consultation with a psychiatric nurse and a social worker on the day after the murders and is calm, neither irritable nor angry and says nothing about having killed anyone the day before, spends a whole year at large in the community without saying anything to anyone about committing a gruesome murder, on remand in prison goes into segregation specifically to avoid contact with such co-inmates as might relish the opportunity to allege a confession by him  . . . and then promptly confesses to the occupant of the next cell through a pipe. All this plus the contrast between official scepticism of police evidence of oral confessions, expressed in the PACE “verballing” provisions, and the insouciance about relying on gaol cell confessions is nothing short of Alice Through the Looking Glass (to quote Heather Hallett QC, Chair of the Bar as she then was, in Counsel magazine).

A final conjectureThe jury in the second trial were told in clear terms that they could only convict Stone if they accepted the truth of Daley’s evidence. The formal assumption of course must be that they did accept his evidence

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and acted according to the duty imposed by their oath. On the other hand, it may be assumed that they were not a stupid or gullible jury and it is difficult to believe that they would not have been at the very least highly sceptical of the idea that Stone would have felt impelled to open his heart to another prisoner immediately after arriving in the very part of the prison where it was accepted he had sought refuge from the risk of the false attribution of a confession. It would be intriguing to conjecture whether the jury, while suspecting Stone to be guilty, nevertheless believed that Daley was lying about the confession and regarded his pious protestations in chief as facile flannel and his final flourish in re-examination as little more than overegging it. It may be wondered whether the array of suspicious factors apart from the confession did not lead them to the conclusion that the public would be safer with Stone behind bars until such time as evidence might emerge which exonerated him. The Court of Appeal plainly enthused in itemising the various elements of suspicion.119 Yet those elements will hardly dispel the myriad doubts.

VII. EXAMPLES OF RESORT TO CONFESSIONS MADE ON REMAND TO FELLOW PRISONERS

The use of fellow prison inmates as witnesses against the accused on matters of confession goes back to the very beginnnings of the history of confession evidence in English common law. In Robert de Skelebroke le Botiler,120 a case of murder, the accused claimed he had made his confession on examination in order to escape the cruelties he had faced in gaol. The court found another prisoner to contradict the allegation. In a recent American study it was observed:

“The history of the snitch is long and inglorious, dating to the common law. In old England, snitches were ubiquitous. Their motives, then, as now, were unholy.”121

119 Para 94.120 (1302) Year Book 30, 31 Ed. I, Horwood ed., 1863, p.543121 Warden, R., The snitch system: How snitch testimony sent Randy Steidl and other innocent Americans to death row, Northwestern University School of Law, Centre of Wrongful Convictions, 2002, p.2, cited in Kassin, S., “Judging Eyewitnesses, Confessions, Informants, and Alibis: What is Wrong with Juries, and Can They Do Better?” in Heaton-Armstrong, A., Gudjonsson, G.H., Shepherd, E. and Wolchover D. (Eds), Witness Testimony: Psychological, Investigative and Evidential Perspectives, Oxford: Oxford University Press, 2006. For other U.S. studies cited by Kassin from (2002) 23 Cardozo Law Review

Prison confessions attested to by fellow inmates have certainly featured in a number of modern trials, of which the following prominent examples are illustrative.

The A6 murder In 1961 James Hanratty was convicted of the murder of Michael Gregsten, the so-called “A6 murder.” Gregsten’s companion, Valerie Storie, who had been raped by the murderer, subsequently picked out Hanratty at an identification parade although there were well-documented weaknesses in her evidence on the issue of identification and she had initially picked out the wrong man at an earlier parade. For four decades after Hanratty was executed a vigorous campaign was conducted aimed at overturning his conviction and the case was eventually referred back to the Court of Appeal by the Criminal Cases Review Commission. However, in something of an anti-climax for those who had long regarded his conviction as a miscarriage of justice, his appeal was dismissed when it was found that DNA from his exhumed body matched that on swabs originally taken from Valerie Storie. For present purposes the case is noteworthy in that the evidence for the prosecution included that of an habitual criminal who was facing trial for organised fraud and who claimed that Hanratty had confided his guilt to him when they were on remand together. The witness subsequently received a surprisingly lenient sentence.122

Terry MarshIn late 1990 Terry Marsh, the undefeated former world welterweight boxing champion, was tried for attempting to murder Frank Warren, his former manager. Warren had been shot in the street by a masked gunman who fired a pistol at his chest from close range. Not far distant and minutes after the shooting an elderly boxing enthusiast came face-to-face with a man who resembled Marsh. Although Warren was known to have many enemies Marsh was believed to have a strong motive because he had faced humiliation and ruin

(special issue) see eg Yaroshefsky, E., “Symposium: The coöperating witness conundrum: Is justice attainable?”; Cohen, S.M., “What is true? Perspectives of a former prosecutor,” 817; Gershman, B.L., “Witness coaching by prosecutors,” 829. Also cited by Kassin were Yaroshefsky, E., “Coöperation with federal prosecutors: Experiences of truth telling and embellishment” (1999) 68 Fordham Law Review 917; and Glaberson, W. “Trading in lies, some informers build cases for prosecutors,” The New York Times, 7 April 2004, Section B, p.1.122 See Foot, P., Who Killed Hanratty? An Investigation Into the Notorious A6 Murder, London: Penguin, 1988, p.151.

after their relationship soured and it was alleged that on one occasion Marsh was actually heard to say that he would “shoot the bastard, one day.” Suspicions were heightened when the police searched Marsh’s home and found ammunition, although no match was made with the bullet fired into Warren. On these facts alone there would obviously have been no case against Marsh but the trial is notable for the fact that, as with Michael Stone, the prosecution relied on the evidence of a prison inmate who claimed that Marsh had confessed to him when they had been on remand at the same time. (Unlike Daley, the co-inmate used an alias in the witness box.) In a further similarity with the Stone case Marsh did not give evidence but there the parallels end because Marsh, a man of exemplary character who had served in the Royal Marines and the fire service and, perhaps extraordinarily, had been a schoolboy chess champion, was triumphantly acquitted.123

The torso murderIn the mid-1970s Reg Dudley and Bob Maynard were convicted of what came to be known as the torso murder, that of an underworld figure named Bill Moseley, whose headless body was washed up in the River Thames. They were also convicted of another murder. There were no witnesses to the murders and no scientific evidence. The convictions were based solely on alleged oral confessions made to the police and in alleged boasts made to a fellow prisoner while on remand. Subsequently, Mosely’s head was found and disproved the prosecution’s casebased, it seems, on the confession evidencethat he had been shot in the head. The convictions were quashed in 2002 because it was established that the confession to the police, which had been taken down in longhand, could not have been written in the time claimed and because the fellow prisoner admitted he had concocted the confession, a claim he had in fact been making as early as 1980.124

David AmaniAnother recent case of note is that of David Amani, a prisoner serving life, who was convicted of the murder of a fellow convict on the basis inter alia, of the evidence of a serial rapist who alleged that he and Amani were held in neighbouring cells in a Secure

123 See The Times between 23.10.90 and 8.11.90 for daily reports on the progress of the trial.124 See The Times, 17.2.02 and The Guardian, 19.7.02; for a detailed contemporary account of the case see Campbell, Duncan, “The Case of the Missing Evidence,” Time Out, No. 379, 1-7 July 1977, pp.11-13.

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Punishment Unit when Amani confessed to him through the bars of his cell window.125

Subsequently, defence investigations of prison records demonstrated that at the time of the alleged confession Amani and the witness were actually in different prisons. However, Amani’s conviction was upheld on appeal on the strength of the evidence of two other inmates, one of whom had an admitted grudge against him.126

The Damilola Taylor caseIn the widely publicised trial of four youths in 2002 for the murder in 2000 of a 10 year old boy, Damilola Taylor, the prosecution relied prominently on admissions allegedly made by the defendants to fellow inmates of the joint young offender institution where they were on remand. One of the witnesses, an 18 year old, was on remand at the time for robbing a 70-year old woman, leaving her with a broken shoulder, for which he subsequently received a mere 18 months after the sentencing judge was told that he had given a statement in the Damilola Taylor case. The witness claimed that two of the defendants, brothers, boasted of their guilt at various times. On one occasion, he alleged, both brothers “persistently” talked about the murder during inmate association periods. However, on being confronted by the defence with official records, which showed that he had been on the same wing as the brothers for, effectively, one full day and, therefore, only one association period, he changed his account to suggest he might have heard the “persistent” comments during education or gym sessions. He also altered his account of how the original conversation with one of the brothers had come about. Another inmate witness, apparently called to give evidence of self-incriminating remarks by the defendants, stated he could not remember details and did not want to say anything which might be untrue. The defendants were acquitted.127 In a strange development of the case it has been reported that the landlady of a youth who was an associate of the four defendants has come forward to claim that her lodger confessed to her that he was guilty of the murder.128

125 The case is described by Jeremy Dein, supra, at p.633.126 [2001] EWCA Crim. 1613.127 See The Daily Telegraph, 7.3.02.128 News of the World 9.5.04. Among other memorable cases are the trial in 1978 of Michael Hickey, Vincent Hickey, Pat Molloy and James Robinson for the murder of the newspaper delivery boy Carl Bridgewaater (see Foot, P. Murder at the FarmWho Killed Carl Bridgewater? London, 1982) and the trial of the TV actor John Bindon

IX. CONCLUDING OBSERVATIONS

The contrast between official scepticism of police evidence of oral confessions, expressed in the PACE “verballing” provisions, and the insouciance about relying on gaol cell confessions is truly Alice Through the Looking Glass.

Michael Stone’s case certainly demonstrates the need for a change in the law. But the change it cries out for is not the introduction of draconian measures of detention worthy of a police state. Rather, the reform it points to is a law of evidence prohibiting convictions based on uncorroborated confessions, or at the very least on unauthenticated oral confessions. Otherwise the courts will go on trying cases based on wishful thinking instead of evidence and defence counsel will find themselves having to echo the ringing words of William Clegg when he told the jury in the first trial: “In an unconscious way you may think that everyone desperately wants Michael Stone to be guilty. If he’s guilty the police guessed right and if he’s guilty then the killer’s caught and if he’s guilty then all of us can sleep a little sounder in our beds tonight.”

(cited by James Morton, “Prison Informers: Unreliable Evidence,” (2005) 69 JCL, 89-91).