Should a convicted man stay in prison if his accuser says he is innocent?

Last week in the unreported case of SB [2019] EWCA Crim. 569 the Court of Appeal gave its reasons for upholding a 68 year old grandfather’s conviction in a historical sex case, even though the only witness against him had told them, on oath, that he was innocent, and that she had lied at his trial. 

It was, with respect to the judges, the sort of decision that might cause people to say that the law is an ass.

In another separate, and very well reported, legal development last week, the inquest into the 1974 Birmingham pub bombings concluded with verdicts that the victims had been murdered by the IRA.

On the face of it the two cases are entirely unrelated. The case of SB may or may not be a miscarriage of justice; while the inquest was not directly concerned with the undoubted miscarriages of justice that followed the terrible events of 21 November 1974 when six innocent men were wrongly convicted of mass murder.

The link between SB and the Birmingham Six, is that in both cases the Court of Appeal decided to hear, and to disbelieve, evidence which ought to have led to their respective convictions being quashed. The Six were finally exonerated, while SB remains very firmly behind bars.

The focus of the inquest was of course on those who were concerned with the IRA bombings, not on those (like the six) who were not. It did, nevertheless, hear some evidence from Chris Mullin, the courageous former MP who did so much to secure their release.

The avalanche of litigation that flowed from the arrest and conviction of the Birmingham Six exposed the English legal system, and in particular the Criminal Division of the Court of Appeal at its complacent worst. The case of SB demonstrates that far too little has changed. The common thread running through both cases is the judicial assumption that when, following a conviction, fresh evidence is produced, the assessment of its veracity is best left to judges.

Both the trial and the appeals of the Six were bedevilled by judges wrongly assuming that they knew best.

The pattern was set at the trial, which was conducted by Mr Justice Bridge.

He made little attempt to conceal his belief in the defendants’ guilt, and, it appeared (at least to the defendants and their supporters) he made every effort to ensure that they were convicted.

The crucial legal argument was an application to exclude evidence of the confession evidence, on the grounds that they were extracted by assaults, ill-treatment and threats. Bridge “helpfully gave a long judgment setting out his reasons for rejecting the defence submissions that the statements were inadmissible and for coming to the conclusion so as to feel sure that the police were telling the truth about the statements and the appellants were not.”¹

In summing the case up, he began by telling the jury:

“I am of the opinion … that if the judge has formed a clear view, it is much better to let the jury see that and say so and not pretend to be a kind of Olympian detached observer.”

He was, as Chris Mullin put it, “as good as his word:”

“More than once during the trial he offered explanations for apparent contradictions in the prosecution case that exceeded in ingenuity those offered by crown counsel. Several times he went so far as to take over the questioning of witnesses when he thought crown counsel was not doing well enough. On one occasion, when a policeman briefly strayed off script, Bridge swiftly guided him back to terra firma.”

Once convicted, he confidently told the innocent men that their guilt had been demonstrated by “the clearest and most overwhelming evidence I have ever heard.”

Their first appeal against conviction turned on relatively narrow legal issues, including the the way Bridge J. had conducted the trial, and was dismissed by a court presided over by Lord Chief Justice Widgery, who at least had the excuse that he may have been suffering from undiagnosed senile dementia.

The second – which followed a referral by the Home Secretary – took place 12 years later during the winter of 1987-88. It remains one of the longest criminal appeals in English legal history. It was in this appeal that the Court took it upon itself to adjudicate on the truthfulness or otherwise of numerous witnesses called either by the Six to undermine the convictions, or by the Crown to uphold them.

It was heard by the then Lord Chief Justice, Lord Lane, sitting with O’Connor and Stephen Brown LJJ. The six appellants were represented by three of the country’s finest criminal QCs, Lord Gifford, Michael Mansfield and Richard Ferguson, the Crown by Igor Judge QC, himself later to become a distinguished Lord Chief Justice.

The new witnesses for the appellants supported the men’s case that they had been assaulted by the police before signing their confessions. Some said they even saw assaults taking place. One by one they were cross-examined and expertly taken apart by Mr Judge.

The defence case that there had been a conspiracy “for a completely false case to be put forward by the police witnesses at trial,” was treated by the judges with a mixture of incredulity and scorn.

In his closing argument Judge set out the prosecution case:

“… our submission is that it would have been virtually impossible to find stronger evidence, except perhaps a film of the actual planting of the bombs. And even if,” he added with biting sarcasm, “there had been such a film, that too would no doubt have been disposed of as a police conspiracy. …

“All the time is has to be remembered that the jury, twelve ordinary members of the public, which saw these six defendants and every one of the officers whose names have been specifically mentioned, accepted that they had been honest witnesses and the defendants were dishonest witnesses.”

Although this rather skirted around the point that those twelve ordinary members of the public never heard the evidence which suggested that the police had been dishonest and the defendants honest, the Court of Appeal agreed with Mr Judge.

A former policeman who had seen the men mistreated was “a most unconvincing witness” and “an embittered man,” partly because he had a conviction for stealing £5.00. The evidence of a former policewoman of impeccable character, who changed her account – for no personal gain – and described seeing one of the men being assaulted was “a witness who was not worthy of belief.” A prison officer who saw another of the six covered in bruises on his arrival at Winson Green Prison (supporting their case that they had been beaten up by police officers) “forfeited any credibility he might otherwise have had.” And so on.

With supreme confidence the country’s most senior judges were wrong about almost everything that mattered, and where they were right (about parts of the scientific evidence) they said it didn’t matter anyway.

As we now know beyond a shadow of doubt, the appellants were innocent and their confessions had been – as they always said – extracted from them by torture and ill-treatment. The witnesses torn apart by Mr Judge, and damned by the judges as “unconvincing”, “embittered” or “unworthy of belief,” had all been telling the truth, whilst the police witnesses who had denied ill-treatment had for the most part been lying.

The case is for some reason reported in the Criminal Appeal Reports only in a highly abbreviated form (R v. Callaghan & others (1989) 88 Cr. App. R. 40). Their Lordships’ factual reasoning is dealt with in three sentences:

“[The Court then went on to deal with the reference, and stated that it had no doubt that the verdict of the jury was correct.]

The Court concluded. We have no doubt that these convictions were both safe and satisfactory. The appeals are dismissed.”

It was precisely the outcome that the appellants had tried to avoid, by arguing that the Court should not adjudicate on the fresh evidence itself but should instead order a retrial. It is only this aspect of the case that is reported in the Law Reports.

At the time there was still some room for argument over how the Court of Appeal should deal with fresh evidence. There were two possible approaches to fresh evidence. The first – (see for example Parks (1962) Cr. App R. 29 – was that the Court should not itself decide whether it believed the fresh evidence but should merely decide whether it was capable of belief, and capable of affecting the verdict of a jury. If it was both, the conviction would have to be considered unsafe. That had been the common practice of the Court until 1974. However, in Stafford and Luvaglio (1974) 58 Cr. App. R. 256 the House of Lords had ruled that the correct question for the Court was not whether a jury might reach a different conclusion if it heard the fresh evidence, but whether the Court of Appeal itself felt that the conviction was safe. In other words it was for the Court, not a jury, to assess the veracity of the evidence. It might be objected, indeed it had been very persuasively argued by Lord Devlin,² that such an approach leads to an awkward hybrid of trial of the facts by two different courts, where a defendant can be judged guilty even though a jury has never heard the full evidence in his favour.

Nevertheless, the Court of Appeal in the Birmingham case unhesitatingly followed Stafford, leading them into catastrophic error.

Although the Six were freed three years later (after the Crown Prosecution Service conceded their convictions could no longer be supported), the Stafford approach to fresh evidence remains the law. That was confirmed in 2001 in Pendleton [2001] UKHL 66. Giving judgment in that case, Lord Bingham added a warning:

“… save in a clear case [the Court of Appeal] is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.”

Which brings us back to the Court’s decision last week to uphold the conviction of a man even though the only witness against him admitted that she lied.

On 5^th February 2018 he was convicted at the Snaresbrook Crown Court of sexually abusing his grand-daughter. In order to preserve the anonymity of his grand-daughter we must call her “M” and him “SB”. Over a period of about 6 years, starting when she was 3 or 4 years old, the jury found, on M’s evidence alone, that he had penetrated her vagina with his fingers. She grew into “a fragile and troubled teenager who was self-harming” and when she was nearly 14 she complained about the abuse to her mother. A little later she complained in more detail to a counsellor,

“M told the counsellor that her grandfather had been doing sexual things to her whilst she was a child living with her grandparents. She said that this had happened more than once.She said to the counsellor that she (M) had only realised it was wrong after doing sex education classes at school in year 8. She then kept it to herself, feeling that it was her fault. In the meantime she had started self-harming. The counsellor reported these allegations.”

SB was sentenced to 12 years imprisonment.

It is the sort of case that is now routine in Crown Courts. There was no corroboration for the complaint; but nor was there any particularly obvious reason why M should have been lying.

The counsellor contacted the police who, in June 2016, conducted an evidential interview on video with M (known in the jargon as an “ABE” interview, the acronym standing for “achieving best evidence”). The interview was conducted:

“… objectively, sensitively and fairly by an experienced female police officer. M gave her answers in a seemingly articulate, direct and clear way, albeit clearly in a nervous and sometimes embarrassed way. She provided considerable detail to her allegations.”

The grandfather was interviewed by the police and denied everything.

There was then a lamentable but entirely typical delay of over 18 months while the defendant was charged, pleaded not guilty and awaited the trial which eventually took place in February 2018.

There was a straw in the wind suggesting that perhaps all was not quite right in December 2017. M told the police that she did not want to go to court. There is nothing in itself very unusual or sinister about that: lots of truthful witnesses, especially young witnesses, are reluctant to give evidence, for reasons that are too obvious to need explanation. The Officer in the Case, PC Milne, visited her at school to discuss her concerns. A dispute later arose over what he said to her at the meeting. In any event, when the trial took place M gave evidence, seemingly with no particular problems.

Her ABE interview was played to the jury and she was cross-examined by the defendant’s barrister. The cross-examination was, said the Court of Appeal, “thorough and professional.” To some of the questions she replied “I don’t remember,” but overall she stood by her complaint. It was suggested to her that she was lying and that she had perhaps been prompted by her mother to make up things against her grandfather. Her mother had in the past suggested that SB had behaved in a “sexually inappropriate way” with her (the mother), and had “concerns about how he on occasion had behaved with regard to M as a child,” (to quote the vague and slightly strained way it is put in the Court of Appeal judgment). In any case M rejected the suggestions. She was re-examined by prosecution counsel and asked why she was making the allegations. She replied that she wanted him to “get what he deserves.”

The Court of Appeal described the way she gave her evidence:

“… articulate, direct and clear …, albeit clearly in a nervous and sometimes embarrassed way.”

Her demeanour, the judges thought, was “impressive.”

SB gave evidence denying her allegations in their entirety.

Everyone agreed that the judge’s summing up was fair. The jury convicted by a majority of 11 – 1 and the defendant was duly sentenced and taken to gaol.

The case then ceased to be routine (and I am afraid the need for anonymity means we get into something of an alphabet soup for which I apologise).

M had second thoughts. According to her mother, P, she told her within days of the conviction that she had lied in court. P said she was shocked and rang the Officer in the Case, DC Milne, to tell him. DC Milne denied that anything of the sort had happened.

M also told her Uncle R (the defendant’s son). She said this was because “he has always been the understanding one in the family and I knew he would listen to me.” R contacted his brother, B, who was a criminal solicitor. B gave them the name of a solicitor, and M and her Uncle R went to see him. M’s mother did not come too, apparently because she was at work that day.

The solicitor prepared a statement. She said that her grandfather had not abused her. Her evidence had been untrue. She had made the allegations up “to seek attention from my family, teachers and classmates.” She told the counsellor, she said, for the same reason “to draw more attention to myself.” She also said that the police had told her the case was “very unlikely to go to court,” and that she was “not informed of the consequences that would follow if the allegations I made were believed until after the proceedings had commenced, by which time I was too scared to say that I had lied. I now fully understand the severity of my allegations and the consequences of my actions….” The final two paragraphs read as follows:

“13. When I gave evidence at Snaresbrook Crown Court, I did not want to lie any more and answered most questions with “I don’t know” or “I don’t remember”. I hoped that this would make things right and that my grandfather would be found “not guilty”. I was shocked and horrified to discover that my grandfather was not only convicted but had gone to prison. This was never my intention and was not what was supposed to happen. I was just supposed to get attention and that would be it.

“14. I now realise the severity of my actions and sincerely regret them. After my grandfather went to prison, I knew I had to do the right thing and tell the truth. I therefore confided in my uncle, [R]. He has always been the understanding one in the family and I knew he would listen to me. With his help, I have come to see a solicitor and make this statement of my own free will. No one has pressurised me and no one has told me what to do. I am making this statement because it is the right thing to do and I want to tell the truth. I am truly sorry for what I have done.”

The retraction statement was sent to the CPS and the police.

The police decided to arrest M on suspicion of perjury. She was interviewed under caution, but on legal advice she declined to answer any of the questions put to her. She was not charged.

Meanwhile SB had appealed against his convictions, the sole ground being that M had now retracted her allegations, and had admitted that she lied in court.

On any objective view, M’s retraction meant that the case against SB had collapsed. No jury would have been able to convict him on the evidence of a witness who said in clear terms that he was innocent. Indeed, unless M reverted to her original account, and probably not even then, the CPS could not prosecute him.

However, following the law as set out in Stafford and Pendleton, and (although nobody mentioned it) the Birmingham Six second appeal, the judges decided that it was their job to assess whether M was now telling the truth.

This meant that she had to give evidence and face cross-examination, this time by the prosecution, in the Court of Appeal. It is not clear whether this was done by video-link or whether M, by then 17 years old, was required to give evidence in open court.

Whatever the pressures on her in the original trial, they are likely to have been much greater in the Court of Appeal. Rather than have her evidence in chief on a video recording that could be played to the court, she had to tell the judges that she had been lying at the original trial. If she admitted lying at the trial she was admitting perjury, an offence for which she had already been arrested and interviewed. Presumably her solicitor – who had advised her not to answer questions in the police station – had already explained to her that a witness is equally allowed to refuse to answer questions in court that might involve admitting to a criminal offence. Even if they had not, the Court of Appeal judges told her the same thing. Had she wanted to say “actually I’d rather not answer that question,” or “no comment,” as in the police interview, she could have done so without any legal consequences.

Despite this warning she chose to answer the questions, albeit (according to the judgment) “in a markedly different manner from that revealed in her ABE interview” and was also notably hesitant on occasions in giving answers to direct questions.” Her grandfather had not sexually assaulted her. She added – or as the Court put it “embroidered” – that when she saw DC Milne at school in December 2017 he had threatened her with arrest if she tried to withdraw her allegation. Lord Justice Davis described this evidence as “absurd” and “not credible,” although of course it is exactly what happened when she actually did withdraw it. There is an unhappy echo of Lord Lane’s words about the defence witnesses at the Birmingham Six appeal.

The Court then set out the reasons for disbelieving her (I suppose it is implicit that they were “sure” on the criminal standard of those reasons):

They made the general observation that the retraction statement was written in language that was scarcely that of a 16 year old. The phrase “my momentary lapse of judgment in making the false allegations” was given as an example. That was unsurprising. No-one was suggesting that it was written by a 16 year old. It was written by her solicitor, trying to convey her instructions as clearly and as accurately as possible, and then signed by M as accurately reflecting her evidence. People – whether 16 or older – very rarely speak in the language of a witness statement. Solicitors and police are meant to use the witness’s own words as far as possible, but in practice they often revert to their own style of writing.

More specifically the Court set out their (cumulative) reasons for rejecting her “retraction” evidence:

(1) “M’s allegations in her ABE interview are detailed and (on the face of it) compelling and consistent. It is difficult to credit that a fifteen year old girl could maintain such an account if it was all a lying account.” In fairness, the Court acknowledged that such things could happen.

(2) “M thereafter consistently maintained that account up to and including trial: when she had both re-studied her ABE interview and had ample other opportunity to withdraw her allegations. She never did. Nor did she at any time before or at trial tell her mother that her account was false and (as she confirmed to us) P throughout had believed at that time that M’s complaints were true.”

(3) M must have known throughout that her allegations were very serious. It is also difficult to comprehend why she would maintain that account at trial and then, as is now alleged, just two or three days later (after conviction) tell her mother that it was false.

(4) The Court rejected the evidence of both M and her mother, P, that M told her mother 2 or 3 days after the trial that she had lied at the trial. The “clear tenor of her retraction statement is that the first person she told was R.”

(5) It also rejected as “absurd” M’s evidence that when DC Milne saw her at school in December 2017 he had threatened her with arrest if she did not go to court.

(6) M had in her ABE interview, “volunteered comments about conversations with her grandmother concerning her grandfather. This, if untrue, ran a high risk of being exposed as untrue: as the grandmother could be approached to verify such conversations (the grandmother gave no evidence at trial).”

(7) M had made consistent – albeit late – complaints to her mother, to her counsellor and to the police. She maintained those complaints at trial and adhered to them in cross-examination and re-examination.

(8) Prosecution counsel saw M shortly before and after she gave evidence at the trial. “His recollection and notes record M as, though nervous, happy with the way she was being treated. No indication whatsoever was given to him that she wanted to withdraw her allegations or to cause him to doubt what she was saying.”

(9) The Court accepted DC Milne’s evidence that no indication of withdrawal was given to him until after SB was sentenced.

(10) M’s suggestion that the police had told her that it was unlikely the case would go to court was rejected as “utterly implausible.”

Some may find these reasons persuasive, some may think they smack of an attempt to shore up a conviction on evidence which had disappeared once the chief prosecution witness changed sides.

Reasons 1 and 2 – her consistency up to and including the trial – could apply to most complaints, whether true or false. Indeed, if a single complainant were to tell her mother before trial that she had lied it is unlikely that the CPS would continue to pursue the prosecution at all.

A possible answer to Reason 3 (why would she change her story just three days after the trial) might be that it was not until SB was convicted that she realised the enormity of what she had done, or found the courage to try to make amends.

Reason 4 quite reasonably highlights an inconsistency between her retraction statement and her sworn evidence, but it also highlights the oddity that her mother, who appears to have thoroughly disliked SB and had believed her daughter up till that point, actually corroborated her new evidence on the point.

Reason 5 (her “absurd” evidence that DC Milne threatened to arrest her in December 2017) is rendered less than absurd by the fact that she was arrested in May 2018.

Reason 6 is impossible for anyone else to assess because we have no idea what the comments to the grandmother were, or for what reasons the grandmother was not called to give evidence.

Reason 7 (consistent complaints to her mother, the counsellor and the police) seems a make-weight to get the number of reasons up to a round 10, and pretty much a rehash of Reasons 1 and 2.

Reason 8 (no indication of unwillingness to prosecution counsel and prosecution counsel’s lack of doubt) is another restatement of her consistency, and to rely on prosecution counsel’s lack of doubt is, frankly, irrelevant. One might as well rely on defence counsel’s doubt as a reason for disbelieving her.

Reason 9 (acceptance of DC Milne’s evidence rather than M’s) I am not sure if this is really a separate reason, or one that follows from the court’s rejection of M’s evidence as “absurd.”

Reason 10 (rejection of M’s evidence that it was “utterly implausible” that the case was unlikely go to court) It does seem unlikely that she would have been told such a thing, but ultimately this point was peripheral to the main question of whether she had been lying about the abuse.

But whatever you think of the Court’s reasoning, the fact remains that the jury were never able to hear M’s evidence as it now is, and to reach a verdict on all the relevant evidence.

Troublingly, the judges do not appear to have asked the question that Lord Bingham suggested should be asked in “a case of any difficulty,” namely:

“… whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.”

That aside, criticism of the individual judges would be misplaced. I have appeared in front of all three and know them to be careful, conscientious and fair. Their assessment of M’s evidence may even be correct, although history shows that judges assessing fresh evidence can get it wrong. My criticism is of a law that requires the judges to make such an assessment when that should be the function of a jury.

The only certain thing about the case is that the single witness implicating SB has committed perjury. If that alone does not make the conviction unsafe in the eyes of the law, then there is something badly wrong with the law.