To Mr Justin Hawkins,
Criminal Cases Review Commission.
27th April 2009
Dear Mr Hawkins
Re: Michael Stone Application
Further to my recent letter to the Commission regarding this case, we would just like to add one point which ought to be considered from the point of view of commonsense, rather than perhaps a legal perspective, not least because this case if left unchallenged has important ramifications for the way serious crimes are prosecuted in this country.
Mr Stone's conviction for murder, which is the most serious criminal offence known to the law, rests paradoxically not upon any conclusive evidence worthy of supporting a conviction for such a crime, but solely upon the word of a proven and self-avowed liar - namely the evidence provided by Mr Damien Daley, the chief prosecution witness.
Should Mr Damien Daley ever renounce the evidence he gave at trial and admit that he had simply told the jury "a pack of lies" - nobody would be any the wiser as to whether Mr Stone had really committed the crime. This seems an affront to the sense of justice, and is not much different from calling any proven liar to court to testify that "the defendant admitted he did it", in order to secure a conviction for murder, or indeed any other crime.
It is in the public interest to stop this type of prosecution which invariably depend on jail confessions, but could just as easily apply to confessions voluntarily made, which simply reflect facts that are already in the public domain.
From a legal point of view in drafting a possible ground of appeal, we would venture to suggest that where the points of detail found in a confession are admitted to be in the public domain, the judge ought to be required to give a warning to the jury that only if they are able to accept that the confession was made by the defendent voluntarily should they proceed to consider whether the defendant is in fact guilty of the crime.
When a defendant denies having confessed, as in this case, the judge ought to be required to give a direction on lies, as when a defendant deliberately lies for various motives which may not necessarily represent an attempt to conceal guilt in respect to a crime. Judges are legally bound to convey a warning to the jury about the probative value of lies, in order to avoid a miscarriage of justice simply because the jury considers a lie to be conclusive of guilt.
In this case, the jury evidently found that Mr Stone had lied about giving a confession to Damien Daley, and it could be surmised in the absence of a suitable judge's warning that the jury then took this lie to be indicative of guilt in respect to the crime charged.
The Court of Appeal in reviewing the decision of the lower court on a referral from the CCRC might well decide that they cannot be sure whether the jury would have reached the same verdict had they been given a direction on lies.
Mr Stone's denial of speaking to Mr Daley evidently featured prominently in the jury's deliberations, as they requested to visit the actual cell in which Mr Stone was remanded, to determine whether he could have made a confession through a gap in the wall, as Mr Daley was claiming. They would have been prompted to take this course of action because the prosecutor Mr Nigel Sweeney had specifically open his case on the basis that he "had to make them sure that Mr Stone had confessed." That is why the jury no doubt decided that they had to visit the prison cell to hear for themselves whether it was possible for a conversation to be conducted through a gap between the wall and the heating pipe.
The opening statement by the prosecution was however clearly misleading, because it amounted to saying that if the jury found that Mr Stone had made the confession, as contended by the prosecution, then he must necessarily be found guilty.
This would have been a manifestly wrong conclusion to draw in law and in fact, and coming from the prosecutor while remaining uncorrected by the judge, would have led the jury to believe that they had only to be satisfied that the confession took place in order to establish guilt.
The lack of an appropriate direction on lying and a correction of the prosecution's opening statement, which would have conveyed a misleading impression to the jury as to what they were required to determine in order to establish guilt, may provide a valid ground of appeal.
Please convey the contents of this email to Mr Miles Trent who is considering Mr Stone's application, as we are anxious to ensure that the Commission is apprised of all the facts in order to arrive at a considered view as to whether to make a referral.