R v Trevor Anthony Campbell 1999 UK Court of Appeal

This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha
Underlining where it occurs is for editorial emphasis]

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Court of Appeal - 14 October 1999

The Lord Chief Justice

In June 1984 Mrs Ethel Cawood an 84-year-old widow, was brutally murdered in her home. On the following day an unsuccessful attempt was made to set fire to her house where her body was. Two people were tried for her murder. Trevor Campbell who was then aged 19 and his 15 year-old girlfriend Christine. Both were convicted. Both tried to appeal without success.

The Crown said that on the evening of 23 June Campbell and Christine went to Mrs Cawood's house with the intention of stealing from her. A struggle took place between Christine and Mrs Cawood. A bracelet worn by Christine was torn off - a link fell to the floor and her skirt was torn. Campbell struck Mrs Cawood over the head, first, with a bottle, and then several times with a kitchen knife. Her body was then dragged through into the bedroom and laid on the bed, where she was again stabbed. Campbell and Christine left after stealing money. They returned to the house the following day to set fire to it. The curtains in the room in which Mrs Cawood's body lay were set on fire, as was an eiderdown, but before the fire took hold a neighbour broke in, dowsed the fire and the police and fire services were called.

Campbell’s defence was that he was elsewhere and had nothing to do with the killing or with the attempt to set the house on fire. The trial judge said that the case against him was his inability to account for his movements on that Saturday; his eventual statements which were clear admissions of murder; his possession of the skirt with blood on it of the same group as Campbell ’s, which was a fairly rare blood group (about 7.5% of the population). There was blood on his jeans, but the forensic scientist that he would have expected more blood than that on the clothes of the killer, and the blood on the jeans, although human, could not be grouped. Campbell's said he got blood on his jeans from scratching his eczema.

When Campbell was interviewed, he gave accounts of his movements which were vague and inconsistent. Much of the questioning took place about a fortnight or more later. In the summing-up little attention is drawn to the detail of his alleged movements and the alleged inconsistencies.

Campbell’s mother produced a torn leather skirt which Christine had worn, on which there were specks of blood of the same blood group as the deceased, being (as the judge pointed out) a blood group shared by 7.5% of the population. That skirt had been in the possession of Campbell. It was clearly potent evidence against Christine, but much more equivocal against the appellant himself.

The blood on the jeans was of limited importance. The quantity was very small and much less than would be expected if the jeans had been worn by the murderer at the time of the murder. It was not possible to identify the blood as that of the deceased. There was some suggestion that the jeans had been washed and Campbell gave an explanation of how the blood came to be there.

Those factors supported a case against Campbell if his admissions of guilt were accepted, but could not support the conviction on their own. The judge did not include the evidence of Christine as a major factor of the case against Campbell. The judge reminded the jury that her character was "not a particularly pleasant one". She had a reputation of stealing from old people in their homes on the pretext of being there to help them or being there for religious purposes. The judge described her as "a pretty dedicated and sophisticated shop thief".

The admissions Campbell was said to have made were the basis of the case against him. After the jury had retired they sent a note asking, “Can we come to a manslaughter verdict on either or both of the defendants?” The judge replied:

"So far as Campbell is concerned, it is not open to you to return a verdict of manslaughter. The case against him is that the statement that he made was a confession to murder, and either he made it voluntarily and it is true, or it was beaten out of him .... I am sorry, not 'beaten', but it is a manufacture of the police officers, a complete manufacture which he signed because he was being beaten up. It is as simple as that."

It also emerges from the transcript that at the time when the jury asked that question they were all agreed about the guilt of the appellant. But the judge's answer, as we understand it, makes plain that by far the most potent element of the prosecution's case against the appellant was the admissions that he was said to have made. This also was the understanding of counsel who had not appeared at the trial but who was asked to advise after the appellant's conviction. He recounted that the case against the appellant consisted of three general elements: (a) scientific evidence; (b) his inability to give a consistent account for his movements on Saturday, 23 June; and (c) his confessions to the police. Counsel's view was that, of that evidence, (a) and (b) separately or together would not have been sufficient to convict him. The decisive factor in counsel's judgment was obviously (c), the confessions. That also is our understanding of the case.

A series of written statements were taken from Campbell in June and July 1984. He made no admissions and the statements were taken by officers against whom no complaint is made.

On 11 July a long series of interviews took place, the history of which was recounted by the judge in his summing-up. The first took place at 9.15am. It was conducted by two officers, Swingler and Cooper. No contemporaneous notes were taken and no admissions were made. No complaint is made of that interview, which took place at a time when Campbell was not under arrest. At the end of that interview, however, when he sought to leave the police station he was arrested on suspicion of murder.

The second interview on that date was conducted at about 2pm by the same two officers, when Campbell was closely questioned about his movements. Again no contemporaneous notes were taken and no admissions are said to have been made. But the appellant has alleged that from that interview onwards he was the subject of physical assault, intimidation and threats and he paints a picture of police misconduct which begins with that interview.

The third interview on that day took place at about 6.30pm. The judge described that in his summing-up. Again Campbell was asked about the previous statement he had made and about his movements on that particular date. The interview was conducted by the same two officers. There were no contemporaneous notes and no admissions were made.

The situation changed during the fourth interview on 11 July, which took place at about 8.50pm and was conducted by two officers not previously involved with Campbell - Perkins and Reynolds. The judge describes the effect of this interview in his summing-up. There were no contemporaneous notes of that interview, although there were later witness statements; but it was said that, in the course of questioning, Campbell broke down and confessed to having committed the murder and to having returned to the house on the Sunday in order to set fire to it.

There was a further interview at about 10.05pm on the same date, this interview being conducted by Holder and Brown. There were no contemporaneous notes, although there were later witness statements. The judge summed up this interview over a number of pages of his summing-up. He records the full admissions which Campbell is said to have made. He records the denial of the appellant that he made the admissions attributed to him, and the judge quotes the appellant as saying:

"The statement I was being continually beaten up, I only signed because of the pressure, and this is all invention by the police officers."

There were then, still later, a series of interviews which may be viewed as separate interviews or as a protracted continuing interview. The officers involved were Holder and Brown. On this occasion there were notes made contemporaneously and signed. Again there were admissions recorded and again the judge reminded the jury of the Campbell's challenge. It is not however in issue that he did, in an interview beginning at about 11.45pm and extending for a long time, eventually sign a statement. This last session with which the judge dealt was conducted by Brown and Reynolds.

The crux of this appeal advanced on behalf of Campbell is to this effect. He submits that, in the light of the material now available to undermine the credibility of the three police officers in particular on whom the prosecution case crucially depended, this court cannot now regard the conviction of the appellant as other than unsafe. This submission rests on a body of material tending to the serious discredit of three of the four officers involved in the final series of interviews during which admissions were made.

Counsel refers us to a series of cases. The first to which he draws our attention is R v Lewis. Lewis was a defendant who had been brought to a police station in a police car and alleged that he had been abused en route. On reaching the police station he claimed that he had sought to cross out the box indicating that he did not want a solicitor in order to show that he was seeking the services of a solicitor, but he claimed that when he was drawing the line his hand was jogged in order to cause him to draw the line in the place which he had not intended. His solicitor inspected the custody record at the time and found a marking which lent some corroboration to the claim which he had made, which indeed expert evidence later verified. Lewis also claimed that he had signed in blank a number of sheets of paper, having been threatened with unpleasant consequences if he failed to do so. He told his solicitor at the time that he had signed blank sheets, and these were later the subject of ESDA analysis which indeed showed that the sheets had not been signed sequentially but that the signatures had been affixed on the pieces of paper in an order quite different from that which the pieces of paper bore when incorporated into the statement. Again therefore there was support for his complaint that he had been prevailed upon to sign the pages in blank.

In the first instance his appeal against conviction was unsuccessful, but the matter was referred back to the court by the Home Secretary. An appeal was allowed and a retrial ordered. At the retrial the Crown declined to call one of the police officers who had been implicated in the improper conduct of these interviews, and the second officer was unavailable. The result was that the trial was stopped and no conviction recorded. In due course the defendant Lewis brought a civil action against the Chief Constable of the West Midlands Police which was settled in his favour on entry of judgment for £200,000 and costs and the reading of a statement in open court in which the Chief Constable acknowledged, and expressed his regret for, the miscarriage of justice which had occurred.

Our attention has been drawn to two judgments given in the course of this series of events. The first is the judgment on the reference (unreported, 3.4.92), in which Lord Lane CJ, giving the judgment of the court, recounts the history of the proceedings. He points out that the principal problem in the case arose from the activities of two police officers, DS Reynolds and DC Perkins (those being two of the officers intimately involved in the present case). The Lord Chief Justice said:

Taking those facts together, we have concluded that it is possible that the jury's consideration of this count might have been affected had they known about the results and circumstances of the disciplinary proceedings against Reynolds and Perkins. In view of this combination of circumstances we shall therefore also quash the conviction on count 4.

The matter was taken a little further in the statement in open court when again the facts were recorded including the abuse of Mr Lewis in the car on the way to the police station, the denial of a solicitor, the threat if he did not sign the blank pages and the fabricated interview notes. In the statement the Chief Constable regretted that Mr Lewis had suffered a miscarriage of justice and had sustained the damage for which he was to be paid compensation.

Counsel relies on that as one instance in which the reliability of these two officers who worked in tandem has been very seriously undermined. He further draws our attention to an extract from the judgment of this court in R v Hickey and others (unreported, 30.7.97). This recounts the history of these officers in another case which gave rise to adverse disciplinary findings which, in the case of one officer, were reversed on appeal, and in the case of the other, as it seems, would have been had he been fit to pursue the matter. In the course of that investigation, however, Perkins did make a statement in which he admitted preparing in the case of a defendant named Elwell what were described as "a set of fictitious notes .... to assist in the duping of persons who had been arrested by myself and other officers". This he evidently described as "an unorthodox method" and a statement said that the times on these notes were to coincide with the times of a real interview with the defendant so that the defendant's co-accused would know that in fact he had been interviewed at such a time. The notes were written out and prepared as if genuine, but were never used. In giving the judgment of this court, and referring to the successful disciplinary appeal of Reynolds, Roch LJ observed:

Despite that appeal, the fact remains that DC Perkins admitted being involved in the preparation of a false set of interview notes for the purpose of tricking a co-accused into making a confession, a scheme which closely resembles what the expert evidence indicates occurred in the present time.

The court continued:

"We are satisfied that DC Perkins was an officer who was prepared to resort to deceit to obtain evidence; that that is probably what occurred in the present case with regard to the interview and the written statement of Patrick Molloy and that consequently those confessions were obtained by oppression and were inadmissible as evidence in a court of law."

The court observed that it would have directed that the papers be sent to the Director of Public Prosecutions had this not already been done. Counsel for the appellant draws our attention to a further matter which, as a fact, is admitted. This concerns another defendant named Wiley who complained of falsified interviews. This complaint gave rise to a need to inspect and test by the ESDA method the original documents containing the record of the interview which had been conducted by Reynolds and Perkins, but these records were found to have disappeared. The suggestion is made that the reason for their disappearance was that it was known they would not withstand ESDA testing. That, however, can be no more than a suggestion since it has never been substantiated.

Our attention is drawn to yet another case involving Reynolds and Perkins. This concerned defendants named Horobin and Wilcox. There were complaints in that case about interview records compiled by other officers, but there was a third interview recorded by Reynolds and Perkins, and in this case again the original documents could not be found for purposes of ESDA testing. The same comment falls to be made as in the case of Wiley.

Campbell’s barrister then addresses our attention to another complaint made by a defendant named Treadaway. The complaint made by him was that he was obliged to sign documents as a result of maltreatment. In particular he alleged that a bag was put over his head, and there was medical evidence in the form of petechial haemorrhages around his eyes which gave some colour to his complaint. In this case, unusually, a civil action preceded any criminal appeal and the matter was the subject of a detailed judgment by McKinnon J. In setting out his conclusions and findings of fact, the judge said:

"I have no doubt that the plaintiff was cynically denied access to a solicitor. It is plain to me that the Plaintiff wanted a solicitor. I regard the contrary as incredible. He did, as I find, ask for a solicitor and was told by Mr Brown that he was not going to get one. I do not accept Mr Gompertz's suggestion in argument that it was perhaps Mr Speake, Mr Gurty or Mr Cook who chose, on their own initiative, to tell lies to Mr Ewan Smith. None of the witnesses suggested any such thing. I reject the suggestion that any of the custody officers fed Mr Speake, Mr Gurty or Mr Cook with false information. I am driven to the conclusion that it must have been Mr Brown in charge of the team allocated in Operation Cat to the Plaintiff, who fed false information to Mr Speake, Mr Gurty and Mr Cook."

He then referred to the question whether the plaintiff had been hand-cuffed at his house and continued:

"I have no doubt that the Plaintiff was not handcuffed at his house. If he had been, with his hands in front of him, Mr Brown could not have failed to notice that. If Mr Brown did not notice that, surely he would have said so at the Plaintiff's criminal trial. His account to the jury in the Plaintiff's criminal trial of the Plaintiff being handcuffed to Mr Pickering is not just a mistake. I have to say, having observed Mr Brown over a prolonged period, that it is simply an invention -- nothing less than a plain and simple lie. His explanation of changing his evidence to accord with Mr Pickering's recollection is not credible and, having seen Mr Brown, I do not believe it. Whether over-confidence led Mr Brown's 'crew' to behave as they did I do not know."

Later the judge said:

"There is no doubt that Mr Brown was a most unsatisfactory witness. At time, prolonged in some instances, he seemed incapable of answering simple questions straightforwardly. His stock in trade, as Mr O'Connor submitted, does seem to be the ambiguity -- a leaving of his options open so that, later, any gaps can be plugged without his having appeared to have committed himself to any particular position earlier." [Emphasis added]

His track record confirmed that conclusion. I accept Mr O'Connor's submissions as to Mr Brown's credit as a witness. I have no doubt that he simply did not tell me the truth, in a number of respects, as I have already indicated, namely, (i) the handcuffing of the Plaintiff at his house; (ii) not being the source of the false information given to Mr Speake, Mr Gurty and Mr Cook, (iii) not communicating the contents of John Louis Brown's statement to the Plaintiff.

The judge went on to find that Mr Treadaway had, as he alleged, been assaulted.

Our attention was further drawn (although more briefly) to a case involving a defendant named Dandy. This, we are told, was the first case in which ESDA testing had been deployed forensically. The prosecution collapsed in mid-trial, since it appeared that a page of an interview had been written subsequently. The relevance of that conclusion to the present case is that the whole record was said to have been read over to the defendant by Mr Brown, which could scarcely have happened if the document had not been in its final form. There were as a result of that case disciplinary proceedings against three officers, who included Mr Brown, who were convicted of falsehood on the basis that they had failed to disclose what they claimed to have happened.

Reference should lastly be made in this context to the criminal appeal in the case of R v Treadaway. The appeal was successful. The court regarded it as an inevitable conclusion that the appellant's confession could no longer be relied upon in that case, and also regarded the evidence of two supergrasses as "manifestly tainted", the basis of both findings involving a very clear reflection on the credibility (among others) of Brown.

Counsel has hinted some criticisms of Holder, in particular along the lines that he has on a number of occasions been responsible for denying access to a solicitor to a defendant who should have been accorded such a facility, but, as we understood, counsel recognised that, on the facts available to him, there was no specific criticism which could be made of Holder relevant to this matter. Nonetheless, he submits that, in a case which crucially depended on the reliability of the police officers, these findings made against these members of the West Midlands Serious Crime Squad are such as to undermine the safety of the conviction.

On behalf of the Crown, that submission is resisted. It is pointed out that the campaign of oppression, assault and maltreatment is alleged by Campbell to have begun when he was being questioned by two officers, Swingler and Cooper, against whom none of these findings has ever been made, and against whom Campbell is unable to rely on any documentary material. That is in our judgment a fair observation so far as it goes, and in defence of Swingler and Cooper that should be made plain. It does not, however, carry the Crown very far for the purposes of this conviction since neither Swingler nor Cooper have given evidence of admissions made by this appellant, and it is of course the admissions upon which his conviction depended.

Mr Dennis submits that there are three questions that the court should answer:

1. In the light of the new material were the appellant's admissions properly admitted in evidence?

2. If they were properly admitted in evidence, is it likely that the jury would have returned a different verdict?

3. If the admissions were excluded, was there still a prima facie case?

The Crown has concentrated the brunt of the argument to contending that, even in the light of this material damaging to the three officers, there was abundant material which would have supported a case against this appellant. He submits that there was no complaint by the appellant at the time of maltreatment to the officers in charge of his custody, to his solicitor, or to members of his family who visited him. The Crown points out, correctly, that when examined by a doctor no signs of injury were found. It is nonetheless recorded that in August 1984 he told the doctor who examined him then that he was said to have confessed to something which he had never done, and a probation officer reporting in February 1985, shortly before the trial, who had known the appellant since February 1984, recorded:

"Throughout the period of remand he has continued to deny all knowledge of the offence with which he is charged."

We are reminded that Campbell complained of his watch being broken during one of these assaults, when the record suggested that he had handed it in to the custody officer. The point was made that he was said to have made reference to paraffin, which was an odd statement for the police fictitiously to attribute to him in the absence of evidence that paraffin had been used to accelerate the fire at Mrs Cawood's house. A more telling point, of which the judge reminded the jury at the trial, was a similarity between the statement of Christine and the statement attributed to Campbell made at a time when he (so it was said) could not know what she was going to say because she had not at that stage said it. Particular reliance was placed by the Crown on a drawing made of a kitchen knife by Campbell. He gave an account of how he had come to draw a knife under great pressure from a large number of police officers, but the prosecutor submits that the similarity between the knife which he drew and the knife which was found at the murder scene was such as to preclude any realistic possibility of invention.

He suggested that the police were running a great risk in attributing to Campbell a false statement that Christine had been involved with him at the killing when they could not know what the case against her might turn out to be. Reliance was placed on the relatively minor differences between the statements of Christine and Campbell. Further, it was said that his account was accurate in referring to two sites of stabbing - a matter later confirmed by Christine; on evidence about the throwing away of the key to Mrs Cawood's house; about the later confirmation afforded to the Crown case by the finding of the leather skirt; by forensic evidence of glass found on the appellant's footwear, the glass corresponding to the milk bottle which had been broken in the course of the fatal assault. Further attention was drawn to the bracelet link found in Mrs Cawood's house and matching a broken bracelet later found at Christine's home address. The prosecutor urged that the officers against whom complaints were made belonged to different stations and different sections of the force, making it extremely difficult to imagine how any conspiracy could have been put together.

These are all points which merit consideration, but they are in our judgment all subject to one overwhelming problem from the Crown's point of view: they are not points which were in the forefront of the case which the jury were ever asked to consider. The case was essentially based on the question whether the jury accepted the evidence given by the police officers of Campbell's admissions, and they were told that if they were doubtful about that then doubt should be resolved in favour of Campbell. In the event they had no doubt. All these other questions which could have been very fully explored before the jury, had that been the case that was being presented, were for the most part either ignored or discounted. Some of them, such as the coincidence between the statement of Christine and Campbell were mentioned, but they were not treated as being at the heart of the case.

In any event of course we must remind ourselves that whether or not this material would have been admitted on a voir dire (if a voir dire had been held), it was not held and that was understandable having regard to the procedural regime which existed at the time before the Police and Criminal Evidence Act 1984 and the Codes made under that Act came into force.

In relation to the second question, what would have been the effect if the new material had been considered, the court feels bound to observe that it would be speculating. It would have been a different case and not the case which the jury were in fact sent out to resolve and which was very bluntly and briefly summarised by the judge (albeit unnecessarily) in answer to the jury's question. There are many questions that could be raised as to why Christine should falsely accuse Campbell, and why she should break down allegedly when confronted by his statement, but this is to conduct a post mortem on a body which the jury were never asked to dissect.

The prosecution’s' third submission, that there was still a prima facie case even without the admissions, is one which we find ourselves unable to accept. Had the judge ruled out the admissions on a voir dire on the ground that they infringed the Judge's Rules, we for our part think it most unlikely that he would have felt that there was a case fit for the consideration of the jury.

It is, as we judge, important to remind ourselves that we are in no position to make findings of fact about what happened on 23 and 24 June 1984 or during the interviews on 11 July 1984. It is not for us to hold as a fact-finding tribunal that the appellant was or was not involved in the murder of Mrs Cawood or the attempt to set her house on fire. Nor are we a fact-finding tribunal who can determine whether the three police officers misconducted themselves in the manner which Campbell has claimed. That is simply not our function. Our sole function is to form a judgment whether, in the light of the material now known to us but not known to the judge, the jury or counsel at the time of the trial, we think the verdict unsafe. We repeat that the case depended crucially on a direct choice between the credibility of the police officers, including the three police officers whom we have mentioned, and the appellant. The jury had to be sure that the appellant's account was false in material respects, particularly concerning the alleged admissions, to be sure of his guilt. In making their choice on credibility the jury did not know of matters which threw severe doubt on the honesty and professional integrity of those officers.

Had it been possible to put those findings to the officers they would have been driven to make admissions which would and should have caused the jury to entertain doubts, unless the other matters seemed to the jury to be very compelling. Even if the jury were still inclined to believe the officers, it is hard to see how rationally and conscientiously they could have been sure. If the judge had allowed the case to go to the jury at all he would have been bound to warn in strong terms of the danger of relying on the evidence of officers whose veracity had been so gravely impugned.

In the circumstances we consider that this conviction is unsafe. We accordingly allow the appeal and quash the conviction.

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