Legal Direction - Ground of Appeal

51. Mr Fitzgerald submitted, rightly, that the courts have long recognised the dangers of cell confessions, and he drew attention to four particular points:

(1) They are easily concocted and difficult to prove;

(2) Most prison informants are of bad character and willing to lie in their own interests.

(3) An informer, particularly if on remand, is likely to have an interest of his own, whether of benefit from the authorities or to gain kudos from his fellows in a case of this kind;

(4) These dangers may not be apparent to the jury.

He emphasised that the appellant's conviction at his first trial was quashed because, as we have already said, the evidence of Jennings was unreliable.

52. Mr Fitzgerald identified two safeguards: the duty on the Crown to research the character of their witness; and the duty of the court to give a warning.

53. Mr Fitzgerald accepted that, although defence counsel's closing speech had suggested that Daley might be lying in order to gain credit with his peers or with the police, this had not been put in cross-examination to Daley. But, he said, the duty of the judge to give a special warning did not cease simply because the matter was not put to Daley. Mr Fitzgerald submitted that no warning was given by the judge, that a warning was obligatory and that counsel did not waive the appellant's right to a warning.

54. As to the absence of warning, Mr Fitzgerald accepted that twice in his summing-up the judge directed the jury to examine Daley's evidence with great care. We rehearse those passages. The first starts at page 12, the last line:

"Both counsel told you rightly that the outcome of the case rests on the evidence of Daley. The other evidence, described variously as 'circumstantial' or as 'evidence of consistency,' cannot on its own suffice for a conviction. You assess the witnesses, all of them, including what you know of their background. Daley's background, to use his own word, is that of a "crook" and you should, of course, examine his evidence with great care. It is right to say that a bad background does not mean that a witness cannot be telling the truth, any more than a good background guarantees that a witness is telling it. It is for you to decide and your decision will depend upon your detailed examination of the evidence."

At page 73C the judge said this:

"...Damien Daley. This witness, as you well understand, is central to the case and obviously you should examine his evidence with great care. Only if you are sure that he is telling the truth, that is to say that the defendant did confess to the killing and that it was a true confession, should the verdicts you return be ones of 'Guilty'. Equally, if you are not sure of that, then the verdicts must be ones of 'Not guilty.' the other evidence in the case on its own is not capable of supporting verdicts of guilty."

55. Mr Fitzgerald submitted that the warnings given by the judge would be equally appropriate to any evidence upon which a criminal case hinged and contained no warning as to the potential unreliability of this particular type of evidence.

56. As to the contents of a proper warning, Mr Fitzgerald referred to Pringle [2003] UKPC 9 and Benedetto v The Queen and Labrador v The Queen [2003] UKPC 27, [2003] 1 WLR 1545.

57. Mr Fitzgerald noted that, like Benedetto but unlike Pringle, the present case involves both a cell confession and an informer with a bad character.

58. As to bad character, Mr Fitzgerald said that references to the need for a warning in this regard in Benedetto, tied in with a duty recognised in earlier authorities to warn of the special risks of relying on the evidence of a man of bad character. He gave as a good example of an extended warning as to both bad character and potentially tainted motive, the direction given by the trial judge, in Molloy & Hickey.

59. In addition, Mr Fitzgerald said there was a need for the trial judge to inform the jury that confessions of this kind were easy to fabricate, and experience had shown that reliance upon such a confession can lead to miscarriages of justice. He relied on a decision of the High Court of Australia in Pollitt v The Queen (1992) 174 CLR 558, in particular the judgment of Deane J at pages 586 and 588, Dawson and Gaudron JJ at page 599; Toohey J at page 606 and McHugh J at pages 618 to 619.

60. As to the obligation to give a warning, Mr Fitzgerald asserted that, in cases of cell confessions, there is a general duty to give a special direction, analogous to the duty in cases of disputed identifications. This arises primarily from the risk that the evidence is tainted by an improper motive. He referred to Pringle (paragraph 31), where the Privy Council cited the judgment of Ackner LJ in R v Beck [1982] 1 WLR 461 at 469A.

61. Mr Fitzgerald observed that in Benedetto, at paragraph 32, the Privy Council categorised the evidence of a prison informer as "inherently unreliable." In the present case, he submitted the duty was triggered because

(1) Daley was a prisoner facing trial and, as an experienced criminal, would know he stood to benefit from assisting the police.

(2) These facts alone gave him an incentive to lie.

(3) He had an obvious motive to win transfer out of segregation.

(4) The facts contained in the alleged confession were admitted to be in the public domain.

62. Mr Fitzgerald also relied on R v Price [2004] EWCA Crim 1359 as establishing that it is not generally sufficient for a judge merely to recite the points that have been made by defence counsel in relation to a cell confession, and that failure to give a specific warning about the dangers of evidence as to cell confessions may be a misdirection.

63. As to the bad character of Daley, Mr Fitzgerald submitted that this alone required a direction to treat his evidence with caution. He cited Lord Hailsham in R v Spencer [1987] AC 128 at 134E, R v Causley [1999] Crim LR 572 (transcript of 22nd October 1998) and a decision of the Supreme Court of Canada in Brooks 141 CCC (3rd) 321. Mr Fitzgerald submitted that there were overwhelming reasons for a special direction here, namely, Daley's substantial record, including dishonesty, the fact that he had lied on oath and had every motive to fit up the appellant to gain credit with his fellow prisoners and, further, he was on remand. Although, at trial, defence counsel had invited the judge to consider "a diluted corroboration warning or the need to approach his evidence with caution", the judge's reaction, no doubt having in mind R v Makanjuola (1995) 2 Cr App R(S) 469 at 473, was that this was entirely a matter for his discretion. Trial counsel accepted that there was no requirement. But, Mr Fitzgerald submitted, Makanjuola had been considered by the Privy Council in Pringle and Benedetto, and those authorities had carved out an exception in cell confession cases, so that there is at least a presumption in favour of a warning which sufficed to turn discretion into obligation.

64. This led to Mr Fitzgerald's third proposition, that defence counsel had not waived the appellant's right to a specific warning. In a note to this Court, trial counsel says that had the cases now relied upon by the appellant been decided prior to the conclusion of the second trial, he would have sought such a direction.

65. Mr Fitzgerald then turned to the second ground of appeal, namely that the trial judge did not fully analyse the potential fallibility of Daley, given his motive to lie as a remand prisoner, his admitted acrimony towards "nonces", his criminal history, his admission that he lied on oath at the earlier trial when denying using heroin and his potential animosity towards those attacking women and young children.

66. Mr Fitzgerald identified six matters which ought to have featured in the judge's summing-up:

(1) A specific direction to approach the evidence of Daley with caution, because of his bad character alone, without the neutralising addition of the words "a bad background does not mean that the witness cannot tell the truth";

(2) A direction as to the significance of Daley's admission that he lied to get by in life and was ready to lie when it suited him;

(3) The relevance of Daley's admission that he lied on oath at the first trial and his unconvincing attempt to explain away his disciplinary adjudications in relation to drugs;

(4) A direction that there might be any number of motives to lie given Daley's bad character, history as a career criminal and status as a remand prisoner on the segregation block;

(5) As a prisoner on remand Daley might consider he had something to gain from the police;

(6) Other potential motives to lie were to gain credit with other prisoners and satisfy his own prejudices by "putting away" a "nonce".

67. Mr Fitzgerald said that, even if these points were not put in cross-examination, they still remained relevant and needed to be included in the summing-up.

68. On behalf of the Crown, Mr Sweeney QC submitted that a full direction of the kind envisaged in Benedetto was not required in this case, and that the judge's directions were entirely adequate. The mere fact that a confession was alleged by an untried prisoner did not automatically require a full direction: there is a threshold beyond that mere fact and the threshold is material indicative of motive. Trial counsel, on behalf of the appellant, had not cross-examined about motive for good reason: there was none that would stand examination before the jury.

69. 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, "damningly and incontrovertibly rebutted". As to the suggestion in this Court that movement out of segregation was a viable motive, trial counsel had deliberately decided not to pursue that suggestion for sound tactical reasons. There was no evidence of any compelling need to get out of the segregation unit. Such a suggestion 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.

70. As to the bad character line of cases, Mr Sweeney submitted that there is no automatic rule that such cases require a specific warning. At its highest, there was a discretion or judgment to be made by the judge as to the directions he would give. The judge had referred, twice, to the need to take great care and had scrupulously rehearsed all points taken against Daley. That, submitted Mr Sweeney, was an appropriate way of dealing with this case.

71. He further submitted that, there being no evidence of improper motive, a direction as to possible factors which might give rise to a danger of false confession, followed by a detailed analysis of the absence of any such factors was likely to be more harmful than helpful to the defence.

72. Mr Sweeney stressed the many details of what had happened which were included in the confession described by Daley. This had led defence counsel at trial to suggest to Daley that he must have boned up on what was in the public domain so as to be enabled to fit up the defendant.

73. The defence alleged preparation in circumstances where, on any view, it was pure chance that the defendant was placed in the cell next to Daley. Although it was true that the statement was not made until 26th September, both sides knew that Daley had explained that he had wanted to get his uncle's approval that he would not thereby be a 'grass' before making the statement.

74. Mr Sweeney relied upon the passages in the summing-up at pages 12 and 73, which we have already cited. Furthermore, as Mr Sweeney pointed out, the judge accurately rehearsed Daley's evidence twice, initially in his summing-up and later in response to a jury question. In addition, he accurately rehearsed the submissions of counsel for prosecution and defence in relation to Daley's evidence.

75. Mr Sweeney also pointed out that, although Daley's evidence was crucial, it was not by any means the only evidence in the case implicating the appellant. The appellant's appearance was consistent with the e-fit produced by Miss Burchell, the defendant had knowledge of the area, he habitually carried a hammer in his motorcar, and he was prone to using a boot lace tourniquet, such as was found at the scene with Megan's blood on it. Miss Batt saw him in a bloodstained T-shirt and he lied, in interview, in relation to matters succinctly rehearsed by the judge at page 116 of the summing-up:

"...his knowledge of the area, he pretended he had none, the hammer, his claim not to carry them in vehicles, the frequency of his use of bootlace tourniquets, his claim to have no hooded top, if you accept the evidence of Batt about the blood on the T-shirt, he has lied in denying that, too, and, finally, the lie in interview that he was telling the truth."

76. As to the law, Mr Sweeney submitted that directions of the kind now being considered originated in rules of practice, which became rules of law in cases involving children, sexual offences and accomplices. The warning which the judge had to give was often of great complexity and difficult and spawned analogous cases where a corroboration warning, if not obligatory, was close to being obligatory.

77. These unsatisfactory rules, submitted Mr Sweeney, were swept away for children by section 34 of the Criminal Justice Act 1988 and for accomplices and victims in sexual cases by section 32 of the Criminal Justice and Public Order Act 1994. In Makanjuola the old rules of compulsion were replaced by a wide-ranging discretional judgment to do what the justice of the case requires. The Court made it clear that it was not prescribing what was to happen in every case. Buxton LJ in R v Muncaster [1999] Crim LR 409 made it clear that analogous cases were to be seen in the new light and it was a matter for the judge, depending on the circumstances of the case. As to children, Makanjuola was applied in R v L [1999] Crim LR 489.

78. This Court in Causley [1999] Crim LR 57 held there was no inconsistency between Makanjuola and Muncaster on the one hand and Spencer on the other. Mr Sweeney submitted there was a discretion, unless some new prescriptive element has been introduced into the law. He acknowledge that in the light of Pringle and Benedetto, there is a new prescriptive element in cell confession cases. But, he submitted, that is only when a threshold is crossed.

79. In Pringle (paragraph 30) the Privy Council said there may be cases where the correct approach is to treat the prisoner simply as an ordinary witness about whose evidence nothing out of the usual need be said. Examples were where the prisoner witnessed an assault on another prisoner, or witnessed a drugs transaction. That passage, he submitted, made it clear that the mere existence of a possible motive to lie does not automatically require a special direction, although fabrication in such cases might be just as easy. Further, Pringle plainly proceeded on the basis that a motive to lie is a prerequisite to the need for a special direction. In Benedetto the Privy Council had repeated that it was not possible to lay down fixed rules. The appropriate course is for the judge to identify indications in the evidence. That being so, in the case where the defence has, for good reason, deliberately not asked about motive, it is difficult to know what the judge is supposed to say. The cases of Causley No 2 [2003] EWCA Crim 184O and Price were cases where motive was pursued in cross-examination and thus were different from the present case.

80. As to the line of authorities on bad character, Mr Sweeney submitted that what Lord Hailsham made clear in Spencer was that the Court of Appeal in R v Bagshaw [1984] 1 WLR 477 were wrong to hold that there was an obligatory rule. The domestic authorities relied on by Mr Fitzgerald are cases where bad character arose en route to an assertion of improper motive.

81. In Australia a more rigid approach was envisaged in Pollitt, but Australia retained the old common law rules about accomplices. The Canadian analysis was founded on the entirely different approach laid down in Vetrovec 67 CCC (2nd) 1.

82. In our judgment, grounds 1 and 2 do not impair the safety of these convictions. Any case involving a cell confession will prompt the most careful consideration by the judge. In the words of Lord Hope in Benedetto, at paragraph 31, such evidence calls for "special attention"

83. But the judge's consideration is not trammelled by fixed rules: see Lord Hope in Pringle, at paragraph 30, to which we have already referred. Applying the principles in Pringle and Benedetto we have no doubt that, in what Mr Sweeney described as the case of a standard two line cell confession, there will generally be a need for the judge to point out to the jury that such confessions are often easy to concoct and difficult to prove and that experience has shown that prisoners may have many motives to lie. If the prison informant has a significant criminal record or a history of lying then usually the judge should point this out to the jury and explain that it gives rise to a need for great care and why. The trial judge will be best placed to decide the strength of such warnings and the necessary extent of the accompanying analysis.

84. But not every case requires such a warning. This Court has said repeatedly that a summing-up should be tailored by the judge to the circumstances of the particular case. That principle bears repetition. 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. Similarly, for reasons which we shall explain later, in 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.

85. In the present case, the alleged 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.

86. The position as to motive was highly unusual. 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 evidence in-chief, Daley said that, before making the statement to the police, he spoke to his uncle about the "criminal code that you don't hurt women and kids and don't talk to the police". His uncle said it would be all right to go to the police and he would not be a 'grass'. This was not challenged in cross-examination. In re-examination, Daley explained, in terms which must have been devastating to the defence, why he was giving evidence:

"I just feel guilty sort of thing towards that little girl."

87. If, in the present case, the judge had given a warning about possible motive, he would also have had to remind the jury that the defence could have raised the matter with Daley but had not done so, whereby they had had no chance to see his reaction. He would also have had to remind the jury of the damaging explanation of why Daley said he was giving evidence.

88. We reject Mr Fitzgerald's 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. The submission is inconsistent with the Privy Council's recognition in Pringle at paragraph 30 that there will be cases where it is appropriate to treat a prisoner as an ordinary witness about whose evidence nothing out of the usual need be said. The distinguishing feature of the examples given in Pringle is that, in each, the prisoner witnessed the acts constituting the offence. But there is no suggestion that in those examples a potential motive to gain advantage with the authorities would be absent.

89. Quite apart from that difficulty, the submission is not supported by the authorities. The passage cited by Mr Fitzgerald from Beck refers specifically to cases "where there is material to suggest that a witness's evidence may be tainted by an improper motive." Those words imply an improper motive which has been put to the witness in cross-examination in the normal way. The matter is even clearer in the recent Privy Council decisions. In paragraph 31 of Pringle, repeated by Lord Hope in paragraph 34 in Benedetto, it is said "indications that the evidence may be tainted by an improper motive, must be found in the evidence". Further and importantly, the language of obligation used in Beck does not give rise to an absolute rule. This Court held in Muncaster that cases such as Beck must be looked at afresh in the light of section 32 of the Criminal Justice and Public Order Act 1994 which abolished the requirement for a full corroboration direction in relation to accomplices and victims of sexual offences. Alongside those rules the courts had identified cases outside those categories, but close to them, which required something less than a full corroboration direction. Mr Fitzgerald submitted that these cases continue to require a special direction. That submission, as was pointed out in Muncaster, is inconsistent with the general language used by Lord Taylor of Gosforth CJ in Makanjuola. While the corroboration rules were in force, it was natural for the courts to speak of "an obligation" in analogous cases to give something less than a full corroboration warning. But, Parliament having abolished the rule that, in particular categories, a full corroboration warning must be given, it would, in our judgment, be absurd to suppose that the rules for analogous cases have survived so as to impose obligations more onerous than those now applicable to the original categories.

90. Thus, the authorities do not require us to hold that the judge should have given an express warning about a potential motive for Daley to ingratiate himself with the authorities. There remains the potential motive of his own prejudice against "nonces" and the further potential motive of currying favour with fellow prisoners who were similarly prejudiced. This was an area where, in cross-examination, defence counsel, understandably, trod delicately. He elicited that, in Daley's eyes, the defendant was a "scumbag" and in prison the defendant would have every reason to watch his back. This gave Daley the opportunity to remind the jury of what he had said earlier about the criminal code of not hurting women and children. While repugnance for what had happened to the Russell family might provide a motive for setting up the defendant with a false allegation, it equally might provide a motive for an anti-authoritarian figure such as Daley to tell the police about a confession actually made. The circumstances surrounding this alleged confession, including the unexpected arrival of the appellant in the adjacent cell on the evening of the 23rd, Daley's disturbed state on the morning of the 24th, the test for audibility along the pipe, and the making of the detailed statement on the 26th, tended to support the veracity of Daley. In that context, defence counsel did not cross-examine Daley on the basis that he was motivated to lie. It was, accordingly, conspicuously unpersuasive of trial counsel to suggest in his speech one or possibly two motives for lying and for different counsel before us to suggest another motive.

91. We turn to the question of bad character. Mr Fitzgerald submitted that this is another of the cases analogous to those requiring a full corroboration warning, where a rule survives that the judge must give a specific warning albeit not the full corroboration direction. That submission fails for the reasons given in relation to motive.

92. Some judges might have given a stronger warning than was given by the trial judge in this case. But in saying that Daley's background" is that of a crook and you should of course examine his evidence with great care", he was plainly saying that the jury should examine the evidence with care, because of Daley's bad character. When that is coupled with the judge's careful and repeated rehearsal of the passages in cross-examination where Daley admitted lying when it suited him and defence counsel's submissions on the point, we consider this was an adequate direction. The judge's addition of the words "a bad background does not mean that a witness cannot be telling the truth any more than good background guarantees a witness is telling it" did not, in our judgment, so detract from the force of the point he had already made about character as to amount to a misdirection.

93. Mr Sweeney, in our view, was correct to contend that this case did not cross the threshold so as to require the detailed directions discussed in Pringle and Benedetto. To the extent that the Australian and Canadian authorities go further than the two Privy Council decisions, we agree with Mr Sweeney that they turn on considerations specific to the domestic law of those countries.