R v Russell Stuart Causley UK Court of Appeal 2003

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 - 5 June 2003

In December 1996, Causley was convicted of murder and sentenced to life imprisonment. The Crown's initial response was that it should resist the appeal. However, subsequently further material has come to light and this has persuaded the Crown to alter its stance. Recognising that the ultimate responsibility lies with the court, the view taken on behalf of the prosecution is that the court should conclude that the conviction is unsafe and therefore needs to be set aside. It is the prosecution's view that the public interest demands that there should be a retrial.

We invited defence counsel to deal first with the material that had brought about the change in the prosecution's stance. We indicated our acceptance of the view taken of the additional material by the prosecution so that inevitably the conviction had to be quashed. We have concluded that this is a case in which there should be a retrial and we must now explain our reasons both for allowing the appeal and for ordering a retrial.

Causley, then known Packman, married Carole in 1965. They had one daughter born in October 1968. Both Causley and Packman worked in the aircraft industry. Their work caused them to travel abroad frequently and also to spend periods between 1976 and 1982 residing in Germany and Canada.

In 1983 Causley set up his own insurance business in Bournemouth. He employed a woman called Patricia Causley. At some stage after she stated to work for him, Causley and Patricia started an affair. In 1984 Causley and Packman bought a house in joint names. Later that year Patricia moved into the house with both Causley and Packman, where she and Causley openly carried on the affair, notwithstanding the presence of Packman and their daughter in the house.

In 1985 Causley went to work for a company based in Italy. At trial a former work colleague, Driscoll, gave evidence that in May 1985, after Causley had returned home on leave for the weekend, he told him that he had had a huge row with Packman over his relationship with Patricia and that there had been a physical fight.

Mr Turver gave evidence that at the end of May 1985 Packman had told him, whilst returning home on a flight from Italy, that her marriage was on the rocks because Causley had no intention of giving up his relationship with Patricia. In June 1985, Packman visited her doctor for a routine test. Her medical notes indicated that she had told her doctor that she was separating from her husband.

On the same day, she consulted a solicitor, Mr John, for advice about divorce proceedings and financial matters. Mr John's note of the meeting stated that Packman agreed that she would come back for further advice once she had discussed matters further with her husband. She in fact made no further contact with her solicitor after that date.

The following day, Causley wrote to his solicitor, Mr Hackett-Jones, from Italy saying that he had decided to divorce but “Carole was being awkward”. On 18 June Causley wrote on the reverse of the letter that Mrs Packman “has contacted Ward Bowie (solicitors) and no doubt they will be in touch”. That letter was later discovered by the police and recovered from the files held by Mr Hackett-Jones.

Samantha Gillingham (the daughter) gave evidence that she believed her mother had gone missing some time between 11 and 15 June 1985. She was uncertain as to the exact date when she had last seen her. She described, however, the circumstances in which her mother had vanished from the home. She said that Causley had taken her on a day trip to London, and that when they returned in the evening she discovered her mother's wedding ring on a kitchen worktop together with a note that appeared to be in her mother's handwriting. The note was to the effect that she had had enough and could take no more. Samantha went upstairs and found the wardrobe doors in her mother's bedroom open and a torn-up dress lying on the floor. Her mother was missing, but none of her clothes so far as she could judge, nor her jewellery, including a Rolex watch, had gone; nor had any of the suitcases, nor had her passport. She checked and so far as she could tell few, if any, of her mother's personal belongings appeared to have been taken.

Against that background the prosecution contended at trial that Mrs Packman had simply disappeared without trace from that time. It was their contention that Causley, a man they described as a “ruthless and utterly determined man” had murdered her, his purpose being so that he could live with Patricia as man and wife whilst maintaining his financial position. In due course he had taken her name of Causley as his own, and the pair of them had substituted her name for his wife's name on the title deeds to the matrimonial home. The prosecution alleged that Causley was a clever, devious and cunning man, who, having murdered his wife, was able to dispose of her body in such a way that no trace of it was ever found again. It was further alleged that he had so managed to conduct himself that no police attention of any significant kind had then followed for some eight years.

From June 1985, so far as the prosecution could establish, there had been no trace whatsoever of Packman. The inquiries that were made covered not only this country but also countries with which she had been known to have links in the past. In the eleven-and-a-half years that had elapsed between her disappearance and the date of the trial she had made no contact with Causley, with her daughter Samantha, with her parents, with her brother, with her solicitor, or with any of her friends or acquaintances.

The Crown pointed to the fact that Packman was somebody who had significant work connections and experience in the aviation industry, that she was highly thought of in that field of work, and would thus have found it a straightforward matter to obtain further employment in the industry. However, no one in that industry had heard of her from June 1985 onwards. The Crown called evidence to show the extent of the inquiries that had been made: inquiries with the National Health Service, both medical and dental; the passport office; National Insurance; Inland Revenue; Public Records Office; the Association of British Insurers; and the Register of Marriages, Divorce and Death. The way the Crown put it was that she had simply “disappeared off the face of the earth”.

The Crown relied on the fact that her disappearance and the build-up to the trial and the trial itself had generated a good deal of national media attention, but still nobody had come forward to say that they had had any contact at all with the wife. Thus they invited the jury to conclude that she had not simply disappeared but that she had been killed and, since Causley was the person with the clearest motive for wanting his wife dead, that he was responsible for her death and therefore guilty of the offence of murder.

The second area upon which the Crown focused were the actions of Causley himself between 1985 and 1994. It was submitted that the evidence demonstrated quite clearly that he had given numerous conflicting accounts about his wife's whereabouts, that he had told lies as to whether or not she had been in contact with him and that, generally speaking, on an examination of the totality of his conduct he must have known full well that she had not simply disappeared but that she was not going to come back. In particular they put forward a number of separate matters which they suggested built up this picture. In June 1985 Causley had told Driscoll that his wife had left him, taken money and gone to Canada. In August 1985, Causley told a bank manager that he had separated from his wife and that she had gone to work abroad. On the same date Causley went to Bournemouth Police Station and reported his wife as being missing as from June 1985. This was the first and only time that Causley approached the police about his wife's disappearance, save for events which were to occur at the turn of the year 1985 / 1986.

In August 1985, Causley told Phelan that his wife had gone to Germany. In September 1985, he told Whittamore that his wife had left him and gone to Switzerland. In 1985 he told Randall that his wife was with her boyfriend “up country”, Rangoon that she had gone to France, and Green that she was missing and had gone off with a man with a red Porsche.

That leads to the events from the end of 1985 and through to January 1986. There was evidence to suggest that Causley had claimed that he had had contact with his wife during December and that she had been seen shopping. In December 1985 there was evidence to suggest that two people had gone to the police station at which inquiries into the missing person were being conducted, claiming to be the wife and the daughter Samantha, to say that the wife was alive and well, but simply wanted nothing further to do with the family. Samantha was able to show that that was a charade because she had never been a party to going to the police station and she was able to give evidence that she had had no contact whatsoever with her mother.

At the beginning of January Causley took steps to ensure that the police wrote to his solicitor indicating that there had been this visit to the police station. The Crown submit that there was a clear pretence going on at this stage. Clearly if there was any credible sighting of the wife at any time after June 1985, it would answer any allegations relating to her disappearance. The submission made in relation to these events was that what was happening at this time was a clear attempt to stop any inquiry into what had occurred being made because the wife would be thought to be demonstrably alive and that the person responsible for that was Causley.

Shortly after these events Causley told another witness that his wife was in Malta. In 1986 he told Steadman that his wife had gone to Germany with a rich German boyfriend and another witness, Urquhard, that she had gone to Germany with a boyfriend, and that he had had no contact with her since she left.

In September 1986, Causley's solicitor prepared a draft will on his behalf indicating, falsely, that Causley had made no provision for his wife because she had already been provided for in that she had been given her half share in “my house” (a reference to the jointly-owned matrimonial home), and that she would become entitled to approximately £25,000 under certain policies of assurance in the event of his death, and “Furthermore, she is capable through her qualifications of earning a good income”. So far as the house was concerned, it is quite clear that, at the time when the wife was seeing a solicitor shortly before her disappearance, she was intent upon obtaining her share of the matrimonial property, but it is equally certain that she never did receive a penny from the equity that the couple had in the house.

In 1986 Causley and Patricia travelled to Canada in search of work in the aircraft industry. With Causley's knowledge and complicity, Patricia used his wife's name to the authorities in order to obtain a work permit. While in Canada, Causley told Stocks (who had known Causley and his wife from an earlier period of work in Canada) that his wife was in Italy. He told Stewart (who again had known Causley and his wife from earlier work in Canada) that his wife had gone to work in France and Switzerland. He told a third person, Gibbs (who again had known the couple before) that his wife had left him and “ripped him off” and “emptied their bank accounts”. He told the Rothwells that his wife was now living abroad

In 1989 Causley and Patricia returned to Dorset from Canada. Causley told the Dorset Health Authority that his wife had been living abroad for five years.

In 1990 Causley told PC Forsyth that he believed his wife was in Canada with her boyfriend and that he had had little or no contact with her since she left. If Causley believed that his wife had gone to Canada, then the use of her name by Patricia in Canada was astonishing since it opened up the real possibility that her fraudulent use of that name would be discovered.

In June 1990, Causley and Patricia fraudulently transferred the title deeds of the matrimonial home from his and his wife's name to his and Patricia's name. This was achieved by Patricia impersonating Causley's wife and instructing solicitors to act on her behalf, claiming that she had been separated from Causley for four to five years, that she was then living and working in Germany, and that she was about to emigrate to Canada. His pretence was supported by a forged letter sent from Germany. Patricia then attended a firm of solicitors and forged the signature of Causley's wife in order to complete the transfer.

In July 1990 Causley forged his wife's signature in order to claim the sum of £2,823.54 by way of benefit under an endowment policy. The money was sent to Causley at an address in Germany.

In April 1991 Causley again forged his wife's signature in order to claim the benefit under another endowment policy. On this occasion the proceeds came to a little over £400.

In the autumn of 1993 Causley, Patricia and Causley's solicitor attempted to carry out a life insurance fraud by faking the disappearance and death of Causley. This led to their subsequent arrest. Whilst Causley was on bail, on 1 June 1994 he and Patricia were questioned at their home in Kent by police officers who were by now investigating the whereabouts of Causley's wife as part of a missing person inquiry. The officers were not aware of the fact that Causley had secretly tape-recorded this meeting. That tape-recording survived and was later seized by the police and therefore enables one to know for certain exactly what had been said. Causley falsely told the officers that he had not heard from his wife since about 1989 or 1990 when he had received a telephone call from her whilst he had been working in Germany. He said that he had also received a letter from her in February 1991, but he had not kept it. He said that he had earlier received a telephone call in Canada from her in 1987 when he believed that she, too, was then out in Canada. He falsely stated that there had been a financial settlement after the separation and that he had made payments in cash to her over a period of about 18 months, totalling between £17,000 and £26,000.

Inquiries made in both Germany and Canada confirmed that there was no trace of Causley's wife being in either country after June 1985.

The third limb upon which the prosecution relied, and which is particularly relevant to this appeal, came in the form of the evidence of three witnesses who claimed that they had had conversations with Causley with regard to the murder of his wife. The three, independent of one another, detailed conversations which they said they had had with Causley in different prisons at different periods of time. The first, Michael Lomond, claimed that whilst the two of them were together in Brixton Prison in 1994, whilst Causley was on remand in relation to the life insurance fraud, he had spoken to him.

The second, Andrew Murphy, had been in Ford Open Prison with Causley in 1995. At that stage Causley was serving a sentence of imprisonment in respect of the life insurance fraud.

The third, Andrew Briggs, had been in Exeter Prison in 1996 at the time when Causley was on remand in relation to the allegation of murder.

Of these three witnesses the prosecution relied, principally, upon the evidence of Murphy who provided a detailed account of conversations held with Causley over a period of time, during which he said that Causley had freely admitted the murder of his wife. The evidence of Lomond provided less detailed information relating to the conversations with Causley. The prosecution relied on the evidence of both witnesses, not only to establish that Causley knew that his wife was dead, but also that he had been responsible for her murder. In both cases the prosecution contended that the evidence of the witness included details which could have only come from Causley.

The prosecution maintained that Briggs, the third of the witnesses, was to be treated in a wholly different way. They acknowledged that what Briggs said that Causley had said to him could not be the truth, even if Briggs was telling the truth when he said that Causley had made such remarks to him. The prosecution opened the case on the basis that what had happened in relation to Briggs was that Causley had made a deliberate attempt, whilst he was on remand and facing proceedings in respect of the murder of his wife, to create a smoke screen and thereby seek to undermine the impact of the confession evidence that had already been provided by Murphy and Lomond and which formed, as he knew, a part of the case against him. The prosecution expressly stated that they relied only on the fact that Causley had made these remarks to Briggs, and not in any way on the truth of any of the details said to have been given by Causley.

In January 1996, the Crown Prosecution Service in Dorset instructed Mr Anthony Donne QC to advise as to whether there was sufficient evidence upon which to charge Causley with the offence of murder. The available evidence included the witness statements of Lomond and Murphy. Mr Donne advised that there was sufficient evidence. On 5 February Causley was arrested and on 6 February he was interviewed and charged with the offence of murder.

When the trial judge came to sum up the evidence of Lomond he made a number of comments about it. He said:

"Lomond's evidence, if accepted, does not take you very far.... And it does seem, does it not, that Mr Donne has pinned the prosecution's colours to Murphy."

"There is evidence that Briggs may have had a motive for inventing a confession. There is no such evidence in the case of Murphy and Lomond, though suggestions have been made as to why they might. Lomond, it is suggested, in the hope of favours unspecified in the future...."

The fresh evidence that emerged in relation to these matters, and which when taken with the matters relating to Briggs, led to the referral to this court revealed the following matters:

1. The custody record for Lomond's detention at Dorchester Police Station on 2 and 3 January 1996 revealed that Lomond was released from his arrest on 3 January 1996 because the offence was cleared up under Home Office Rules and that Lomond was then to be taken to Her Majesty's Prison Dorchester as an abscondee;

2. Lomond had admitted the Lloyds Bank offence in his second interview on 3 January (that is during the interview held after the police had agreed to clear up the offence should Lomond admit the matter);

3. The Lloyds Bank video was of sufficient clarity to enable an identification of Lomond to be made, notwithstanding that which was given as a reason for not pursuing the matter;

4. Two witnesses from Lloyds Bank had indicated that they were confident that they would recognise the offender on an identification parade; and

5. Lomond was close to the due release date on his sentence, notwithstanding his absconding from prison, and Lomond was in fact released from prison on 27 March 1996, and the maximum loss of remission for his absconding from prison was 28 days.

That fresh evidence contradicts the assertions made by DC Diment and Nigel Bryant that the discussions and decision with regard to the non-prosecution of Lomond occurred in the latter part of January. It also tended to contradict two of the reasons given by Nigel Bryant and supported by DCI Brazier by way of justification for dealing with the offence under the clear-up provisions in the Home Office Rules.

We turn to the second of the witnesses, Briggs. The background to Briggs' involvement in this matter was that on 11 January 1996 he and his girlfriend Karen Riley were arrested for offences of theft and deception. The officer made a particular point of encouraging the Crown Prosecution Service to prosecute Karen Riley in respect of her involvement in the offences committed by Briggs.

On 13 January 1996, Briggs was remanded in custody to Exeter Prison. Briggs and Causley shared the same wing at the prison and came into regular contact with each other. Briggs offered to give information about Causley with whom he regularly conversed.

In respect of Briggs, the fresh evidence that emerged that was the cause of the referral to this court has revealed the following matters. The decision not to proceed further in relation to Karen Riley on was not made by prosecuting counsel, but was made by the Crown Prosecution Service. That decision had been made two days in advance of the hearing on 14 June. The decision taken by was purportedly made on public interest / evidential grounds, unrelated to Briggs' role as a witness in the proceedings being taken against Causley. The reference to “evidential difficulties” would appear to conflict with the view taken by counsel and the Crown Prosecution Service prior to that date. The decision had been made as a result of an urgent review of the case papers in relation to Briggs and Karen Riley. That review had been prompted by a telephone call made on 12 June 1996 by WDC Clatworthy to the Crown Prosecution Service in which she had apparently expressed her concern and opposition to the fact that the Crown Prosecution Service were proceeding with the prosecution of Karen Riley. It would appear that without that intervention the matter would not have been reviewed and the proceedings against Karen Riley in respect of the third charge would have continued on 14 June.

On 10 December 1996, a number of documents were faxed from the Crown Prosecution Service to Winchester Crown Court for the attention of a member of the staff of the Crown Prosecution Service who was the Crown Prosecution case worker in daily attendance at Causley's trial. It would appear that neither those documents nor their contents were disclosed to Causley's counsel.

The inquiry revealed that Briggs had stated to the Wiltshire officers acting on behalf of the Commission that as far as he was concerned, there was in effect a deal between himself and the police in relation to his provision of information about Causley and his assistance to the police in the case. He has stated that the primary aspect of the deal was that the police would ensure that the Crown Prosecution Service did not proceed with the prosecution of Karen Riley and a secondary and lesser aspect was assistance towards a reduced sentence for his own offences by way of a text or oral submission to the sentencing judge. Briggs has maintained, however, that his account of what Causley said to him was nonetheless truthful.

Transcripts of the proceedings of 14 June reveal a number of matters. First, prosecution and defence counsel saw the judge in chambers before arraignment. Defence counsel drew specific attention to a letter which, in effect, invited the judge to give Briggs full credit for his assistance to the police in respect of the proceedings against Causley. The judge agreed to give Briggs full credit for such assistance and made a significant reduction in the sentence imposed upon Briggs. No explanation was given by prosecuting counsel, either in chambers or in open court as to the reason for the prosecution not proceeding against Karen Riley. The Crown accept that the fresh evidence to which we have referred contradicts the evidence given by WDC Clatworthy as to the circumstances in which the remaining charge against Karen Riley was not proceeded with on 14 June; that it contradicts the impression given to the jury that there had not been any deal between Briggs and the police and the prosecution with regard to his assistance and the prosecution of Karen Riley; that it raises questions as to the nature and extent of any such deal; and that it contradicts the impression with which the jury may have been left that Briggs had received no benefit from the sentencing judge for his assistance when he appeared on 14 June 1996.

So far as those two witnesses are concerned, as we have already indicated, we have not heard any oral argument as to whether those matters in themselves would render the convictions unsafe. The argument as advanced in the skeleton arguments was that there was such a manifest withholding of information from the jury that the conviction, which may have been based in part upon those matters, has to be viewed as being unsafe. The Crown's response if those matter had been vital to the outcome of the case would have been that those matters played an insignificant part in the trial; that so far as the one witness was concerned, he had never been put forward as a significant part of the case and certainly the account as given by that witness of what Causley said was not suggested to be the truth as to what had occurred. So far as the other witness was concerned, by the end of the case the Crown had disavowed the witness, invited the jury not to rely upon him, and the judge had reinforced that view in the course of the summing-up.

Put another way, the Crown suggest that by the end of the case insofar as there was any reliance likely by the jury upon the evidence of any of these three witnesses, it was Murphy, the other witness to whom we have not yet turned, upon whom the Crown were relying and that it is unrealistic to think in any way that the evidence of the other two, without that of Murphy, could have resulted in any difference to the outcome of the case. As we have indicated, we have not gone into that matter. There are clearly features of what occurred in relation to these matters that are disturbing. Having regard to our view that there needs to be a retrial in relation to this matter, we think it unhelpful to investigate further or further to record our views in relation to those matters, lest in any way it prejudices the fairness of any retrial and in particular makes the more difficult the task of utilising such matters on behalf of Causley should those who advise him wish to do so. We accordingly turn aside from those matters and turn to the third of the witnesses.

The position in relation to Murphy was very different. By the time Murphy made a statement to the police, he was not a serving prisoner. At the time when he gave evidence, likewise he was not a serving prisoner. In those circumstances he neither had the need for, nor the opportunity to use, anything he was doing in relation to his evidence to provide him with immediate benefit by the giving of evidence. However, the defence suggested that Mr Murphy was a man with a bad record who had been committing crime all his life and, notwithstanding the fact that he was in his sixties, was likely to go on doing so, and that in effect by helping the police he was storing up credit for himself against the likely situation that one day he might want to use it. Thus his position was very different. There is no evidence uncovered by the inquiry in any way to suggest that there was any police involvement by way of any sort of deal with the witness Murphy. Indeed, since he was not the subject of any charge at the time when he made a statement, or during the intervening period, there was no opportunity for any such suggestion to be made. Accordingly, at the stage when the matter was referred to this court there was nothing in any way to discredit Murphy as a witness over and above matters which had been canvassed and canvassed properly during the course of the trial.

However, since the matter has been referred to the court, fresh evidence has come to light in relation to Murphy of a quite different kind. It is that evidence which has caused the Crown to change its view.

That evidence is that Murphy has given evidence in a murder case in the past in relation to a claim he made to having had a conversation in prison with the defendant in the other case, just as he claims in this case. That matter was a long time ago. In September 1969, a woman called Mary Murray was killed at her home in Cork, Eire, by manual strangulation and blows from a heavy object. Her husband, called the police. He claimed that he had returned home and discovered that someone had murdered his wife. In  October 1969, he was interviewed. In the course of an interview he changed his account and confessed to having killed his wife whilst provoked by her. He was charged with murder.

In December 1969, while on remand at Limerick Prison, Murray came to know Murphy, the witness, who was then on remand pending trial for theft and deception charges. Murphy made witness statements to the police detailing purported confessions to the killing made to him by Murray. Those confessions were corroborated by a police officer, McLaurence. Murphy indicated that he had recorded some notes of the conversations with Murray on the back of an envelope and a letter. Murphy and McLaurence agreed to give evidence at the trial of Murray. The first trial started May 1970. But the jury were discharged after the trial judge had ruled inadmissible the confession alleged to have been made by Murray. A second trial started in June. Both Murphy and McLaurence gave evidence, but the jury were unable to agree upon a verdict. There was a third trial in November 1970 and again the two witnesses both gave evidence. This trial resulted in the jury convicting Murray of manslaughter and he was sentenced to a term of two years' imprisonment.

In February 1970, three months before the start of the first trial, Murphy had pleaded guilty to the theft from a shop of jewellery worth £6,432, and other deception offences. He was sentenced to a term of three years. Prior to each trial Murphy and McLaurence persuaded authorities to ensure their role as prosecution witnesses would not be known.

Murphy and McLaurence sought to obtain remission of sentence by reason of their appearance as prosecution witnesses. McLaurence, who only had a few months left to serve, did receive some remission. However, the position in relation to Murphy has not been capable of being established. When he gave evidence at the trial in this matter he made reference to the fact that his sentence had been cut short (as he put it) on a point of law. But there is no further indication to what he was referring there. It may be a reference to the fact that he received some remission of his sentence because of the assistance that he gave.

The prosecution says that if the material had been known they would have been obliged not only to disclose it but also to consider whether in the light of that evidence they ought to rely upon Murphy. Because they knew nothing of the background, that process never actually took place.

Murphy made a statement suggesting that Causley had made detailed admissions to him in prison. He said the admissions were made when they were walking round the prison. He again, as he had in relation to the Irish matter, said that he had made notes on the back of an envelope in respect of the matter.

There was a third similarity because not only was there the writing on the back of the envelope, and also on each occasion the suggestion that the conversations had taken place when the two were walking around, but the further similarity that on each occasion he referred to the person making the confession to him having spoken of reading detective books and the like and drawing upon the knowledge that they had gained from that source.

Murphy's evidence was undoubtedly an important feature of the case at trial. The case was presented in a way that put the evidence of Murphy at the forefront of the contention that the jury could be sure of guilt. When the judge came firstly to consider a submission of no case to answer, he stressed that was the main plank of the prosecution case. It is a distinct possibility that the conviction was influenced by what Murphy had said about the matter. If there is material that ought to have been available to the defence which might have caused doubt to be cast about Murphy's evidence, then the fact that that evidence was not available at the trial must lead to the conclusion that the resulting conviction was unsafe. That is the proposition that the Crown have accepted in relation to the matter.

At first sight it might be said that merely because Murphy has given evidence in similar circumstances before can have little bearing upon reliance placed upon his evidence unless it can be shown his evidence is false. That is far too simplistic an approach to these problems. There is no doubt at all that evidence of this kind does require a particular caution by the courts. Experience has dictated that when witnesses come forward to give evidence in this sort of way, there are real dangers that need to be catered for. In Benedetto v The Queen and Labrador v The Queen [2003] the Privy Council referred to the problems of such evidence and the experience not only of courts in this country but throughout the world in dealing with such matters. The problems in relation to such evidence are found in the case of identification evidence, not because they raised the same problems but because each needed special caution of which the courts might be more aware than a jury. Lord Hope said:

"The problem which is presented by cell confessions is, of course, different. In the case of identification evidence it is that a wholly honest and convincing witness who has sincerely convinced himself and whose sincerity carries conviction is not infrequently mistaken, and that the value of such evidence is notoriously difficult to assess .... In the case of a cell confession it is that the evidence of a prison informer is inherently unreliable in view of the personal advantage which such witnesses think they may obtain by providing information to the authorities. Witnesses who fall into this category tend to have no interest whatsoever in the proper course of justice. They are men who, as Simon Brown LJ put in R v Bailey [1993] 3 All ER 513, 523j, tend not to have shrunk from trickery and a good deal worse. And they will almost always have strong reasons of self-interest for seeking to ingratiate themselves with those who may be in a position to reward them for volunteering confession evidence. The prisoner against whom that evidence is given is always at a disadvantage. He is afforded none of the usual protections against the inaccurate recording or invention of words used by him when interviewed by the police. And it may be difficult for him to obtain all the information that is needed to expose fully the informer's bad character."

We have to look at the material that was not available to the defence at this trial. No one suggests that it was material that was known to the Crown which they withheld. If the defence had knowledge of it, they would have been able to utilise it in more than one way. They could have compared the evidence given by Murphy at the trial in Ireland with the evidence that he had given in relation to this matter. There were the areas of surprising similarity between the two. The defence could have suggested to the jury that Murphy was using the situation for his own benefit and to give himself advantage in the future in relation to other matters in the future. What effect that would have had upon the jury is difficult to say with any certainly; but it could have been deployed and may have had some influence upon the jury's thinking.

The evidence could have been used to discredit the witness in respect of answers about the number of times on which he had given evidence in the past. The fact that he had a long record and asserted that whenever he had been guilty he had pleaded guilty. The number of occasions he had given evidence before a jury, and occasions which he said that he had given evidence for the prosecution. He was asked whether there were any other occasions and he firmly asserted that there were not. He had made no reference at all to the matter in Ireland. After that assertion had been made, it would have been open to defence counsel to point out that his answer was untrue, that he had given evidence, which had a similarity to that with which he was now dealing, on a previous occasion. That may have had an impact on the jury.

If that was so, that may have had a bearing upon their ultimate conclusion as to whether or not Causley was guilty. For those reasons the Crown's approach in accepting the submissions in this regard is an entirely proper one and on that basis the conviction has to be viewed as unsafe.

Clearly it is undesirable that this situation should have been reached. One of the questions that has arisen in other jurisdictions is whether the prosecution ought to take steps to try to find out whether or not a person has given evidence of a similar kind in the past. The prosecution has accepted that there ought to be a regular practice, for an inquiry to be made by the prosecution as to whether he has given evidence of a confession by a fellow prisoner before.

That has been adopted in other jurisdictions and a sensible practice that ought to be utilised. There is experience around the world which shows that some people do come forward on a number of occasions to say that they have had more than one conversation of exactly the kind that Murphy was claiming.

The code of practice pursuant to the Criminal Procedure and Investigations Act 1996 requires:

"In conducting an investigation the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend upon the particular circumstances."

It is reasonable where reliance is to be placed upon a cell confession, for inquiries to be made of the person concerned. Whether that would in fact have made any difference in this case has to be doubted, having regard to the fact that Murphy, when asked whether he had given evidence on other occasions, conveniently forgot to mention this matter in the course of his evidence. He may well have done the same if the inquiry had been made earlier. On the other hand, there is at least the possibility that, not faced with the matter suddenly in the witness box, he may have been more frank than he was when he gave evidence to the jury.

The Crown's position is right that this conviction cannot be sustained. Accordingly, we quash the conviction and allow the appeal.

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