R v Peter Fell UK Court of Appeal 2001

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 - 22 March 2001

Lord Justice Waller

In May 1982, Ann Lee aged 44, and Margaret Johnson aged 66, when walking their dogs together on a small piece of Army Common land on the outskirts of Aldershot were stabbed and suffered fatal injuries. In October 1983, Fell was convicted by a majority (10-2) of both offences. He was refused leave to appeal.

The case against him was based on admissions made in police interviews in July 1983. The admissibility of those interviews had been the subject of lengthy argument in a voire dire. The judge ruled that the admissions were voluntary and admitted.

The CCRC was concerned about material non-disclosure; psychological evidence; the effect of police interviews given Fell’s compliant nature. So far as the psychological evidence was concerned statements had been provided by Dr Gudjonsson and Professor Kopelman and Dr Joseph. They concluded the admissions were unreliable. In the light of the fresh evidence, is the conviction of Fell safe? 

The Facts

On the afternoon of 10 May 1982, Ann Lee and Margaret Johnson were walking their dogs. The common is quite a small area. As the two women walked along a track bordered by a fence which marked the grounds of Anglesey House, used by the military as a Courts Martial Centre, they were attacked by a man wielding a knife about 3-0pm.

3-15pm Molly Hogg who was walking with a dog, found the body of Mrs Lee lying face down and the body of Mrs Johnson lying on her side, some distance away. The dogs of the two victims were still in the vicinity.

The pathologist report showed that the death of the two victims was due to multiple stab wounds. Mrs Lee had suffered 11 wounds to the back of her upper body and Mrs Johnson had suffered 5 wounds to the front of her chest. Mrs Johnson was found to be 4’10’’ tall. That was said to have some significance, in view of admissions made by Fell in interview ultimately, that she resembled his mother.

Persons On The Common

The jury heard evidence from six witnesses who said that they saw a young dark-haired man on or near the common between 2-10pm and 3-15pm. Fell was aged 20 and about 5’11’’ with shortish dark brown hair. He had had a crew-cut when in the army, from which he had been discharged in March 1982.

Sylvia Swainson and Joy Whatley saw a young man wearing a camouflage jacket at about 2-10pm. Mrs Swainson described the man as aged 18 to 25, between 5’8” and 5’10”, of slim build with short brown hair.

Brian Hackney, a Ministry of Defence policeman, was jogging across the common at about 2-58pm when he overtook Lee and Johnson about 250 yards from the murder scene. A minute later he passed a man who appeared to be unhappy. Hackney said he was early twenties, 5’8” tall, of medium build with long, dark, unkempt hair and wearing a green anorak or an army-type jacket and possibly jeans.

Also on the common was a group of soldiers including Nikolic, Loisy and Waterman. Between 2-15pm and 2-30pm Nikolic, who was about 250 yards from the scene of the attack, saw a young man wearing clothes with the colours camouflage and blue. Nikolic was lost and asked the man if he had seen any Landrovers and the man replied “Yeah, there are some jeeps down there”, pointing out a track. Loisy and Waterman described the man as wearing either blue jeans and an army combat-jacket or a blue jacket and green combat trousers.

The relevance of the camouflage or green jacket was that Fell denied at all times owning either a green or camouflage jacket, although a dozen witnesses gave evidence that Fell did own such a jacket.

Telephone Calls To The Police

On the day following the attack, an anonymous telephone call was made at 11-43pm to Aldershot police station. The call was not recorded but a note of the call has been accepted as accurate. That note reads:-

"I met a man in a pub tonight who got very drunk and he started rambling on about the murders. He seemed to know a lot about them and kept saying how sorry he was that he’d done it. I only know he lives at 10 York Road Aldershot. He asked me to go back there with him tonight but I didn’t."

Shortly after PC Mills at Aldershot police station received a further anonymous telephone call from a male which was recorded in a note as follows:-

"I know where the man who did the killings lives. My brother rang you yesterday and told you. His name is Pete and he lives at 10 York Road."

It is undisputed that Fell made those two calls.

Over a year later, on 4 June 1983, by which time Fell had moved to Bournemouth, a series of anonymous telephone calls were received at Bournemouth police station. Once again it was, and is, undisputed that Fell made these telephone calls.

The calls were made between 9-0pm and midnight on the ‘999’ system and were tape-recorded. The caller was plainly drunk. The calls referred to the double murder at Aldershot on 10 May 1982 and mentioned the two women and the two dogs. The calls identified the attacker as Fell living at an address in Bournemouth of 13 Wellington Road.

The First Police Investigation Of Fell

Fell was employed as a sales representative for Olan Mills Portrait Studios, Grosvenor Road, Aldershot. His bed-sit at 10 York Road was on a direct route between the scene of the attack and his place of work. On 19 May 1982 police officers making house-to-house enquiries about the attack spoke to Fell and obtained answers from him to a pro-forma questionnaire. Fell stated in that questionnaire that he had not visited the common between 1-30 pm and 3-30pm on the day in question or on any other occasion. His account of his movements was that he had been in the Unicorn or Trafalgar public house until closing time and then from 2-30 pm to 3-30pm on 10 May he had possibly been at home. He then said that from 3-30pm until 8-0pm he had been at work. He stated that he had possibly been wearing a blue jacket and grey trousers. He did not mention visiting his bank.

On 23 May 1982 Fell was again seen by police officers. He gave the same account of his movements. His room at 10 York Road was searched and there was no trace of a green jacket. Fell said that he had never owned a knife other than one which he then produced and which was a pocket knife with a 1” blade.

On 4 July 1982 Fell was again seen by police officers and he made a written statement about his movements. He said that he was in the Trafalgar public house until about 2-30pm and then went either to the Cosy Café or the Job Centre until about 3-30pm when he went to work.

Other Evidence Of Fell’s Movements On 10 May 1982

According to two colleagues of Fell, on 10 May 1982 Mark Keable, Fell’s employer, had asked his staff to start work half an hour earlier than usual, that is at 3-0pm. Those two colleagues, Jean Stone and Susan Bennett, remembered 10 May because they had objected to the request as they both had to collect their children from school before going to work. Having collected their children they went to Aldershot and then arrived at work at about 4-0pm. Both stated that when they arrived at work Fell was not present and that when he did arrive, about 5 or 10 minutes later, he was unusually smartly dressed.

The Alibi

At his trial Fell relied on alibi. It could be demonstrated that between 2-0pm and 4-0pm on 10 May 1982 someone had cashed a cheque drawn on Fell’s bank account at Barclays Bank, Victoria Road, Aldershot. Fell had written two cheques drawn to cash on that day and the second had only been entered on the bank’s computer at 3-47pm. Mrs Hewer from the bank, said that her standard practice meant that cheque must have been presented at the counter after 2-30pm. If it was Fell who presented that cheque personally then it was common ground that he could not also have been on the common at the time that the murders took place.

Conversations On 11 May 1982

A conversation between Fell and his girlfriend Lorraine Sturrock was relied on at the trial. It appears that their relationship was brought to an end on 11 May 1982 and Lorraine Sturrock said that she remembered Fell using words to the effect “if it wasn’t for you bitch this never would have happened.” 

One evening after the murder Fell had a conversation with Jean Stone. They were discussing the murders and Jean Stone expressed surprise that two women with dogs could both be attacked. Fell had responded that it was possible to immobilise one woman, run after the second and kill her, then return to kill the first. The Crown suggested that Fell whilst in the army may well have received training on such matters. The procedure described by Fell would be consistent with the way in which the two murders had taken place.

Possession Of A Knife

Fell’s neighbour at York Road was John Harper. Initially he said that Fell had told him that he had an army knife but later when Harper asked to borrow it Fell said he had thrown it away.

Harper made a statement in which he claimed to have seen the knife. He said it was 8 inches long with a handle about 3 inches and a blade about 5 inches narrowing to a point, the blade being about 1 inch wide. Harper described the blade as being “maybe two-sided”. Harper said he initially failed to mention that he had seen the knife because he had not wanted to get involved in the investigation.

Harper ultimately chose a knife from an array of knives in a shop in Aldershot as similar to the knife he had seen in Fell’s possession, and the pathologist, Dr Pullar, gave evidence that the injuries caused to Johnson and Lee could have been caused by such a weapon.

A number of Fell’s fellow soldiers said that while stationed in Germany Fell had had a knife of widely varying descriptions. Two witnesses described Fell throwing a knife at a door. The knife or knives described by these witnesses were not however double-edged or sharp at both edges.

Fell, throughout the interviews and with whatever other admissions he may have made, maintained that he had never owned a knife of the type described by Harper, and maintained resolutely that he did not remember using any knife on the day in question.

The Photofits

Mr Hackney, who had been jogging on the common on 10 May 1982, provided details to the police which led to the first photofit picture being compiled on 11 May. Further details were supplied by Hackney which led to a second photofit being compiled about 21 May. Corporal Waterman also supplied a description used in compiling the photofit. The photofits were published in the press on 10 and 11 June 1982 and were regarded by many people as bearing a striking resemblance to Fell. Undisclosed at the trial was the fact that many people had contacted the police saying that the photofit bore a striking resemblance to other people. Of 157 people who had contacted the police only 5 suggested that the resemblance was of Fell. Also undisclosed at the trial was the fact that Mr Hackney had identified other persons at the labour exchange as bearing a similarity to the person Hackney had seen on the common.

On 4 July 1982 Fell spoke to police officers and stated that people were saying that the photofit pictures looked like him. He went on to say:

"Are you accusing me of being the murderer because if you are I shall get a solicitor in order to sue the police for harassment?"

Fell’s Arrest and Interviews

Following the anonymous telephone calls in June 1983 Fell was arrested and cautioned. He said “I know I don’t have to say anything but I’ll answer what you want to know”.

While Fell was being taken to Farnborough police station in a police car there was an incident involving another vehicle, and in the course of discussing the incident Fell referred to the vehicle in question as a “jeep”. That was relied on by the Crown as having some significance in that the man seen on the common by Nikolic had used the word “jeep” in order to describe a British Army Landrover.

Fell was interviewed between 5-7 July 1983. The interviews were tape-recorded although he was not allowed a solicitor. Fell did not eat at all during the whole period of the interviews. He was offered food but declined it.

The first interview took place between 1-25pm and 4pm - Fell was cautioned in clear terms and he clearly appreciated the effect of the caution. He denied he had ever owned a green jacket. He admitted making the telephone calls on 11 and 12 May 1982 and 4 June 1983. He said he was bored, wanted to be involved and to find out about the murders and draw attention to himself. He denied ever owning a knife of the type described by Harper. He denied he had visited the track on the common.

The second interview took place on the same day between 7-30pm and 8-45pm. Again Fell was cautioned. Again he admitted the telephone calls and stated that he had made them because he had wanted a bit of fun and because he was bored. He persisted with his denial that he did not own a green jacket and said that witnesses who had described him as wearing such a jacket were lying.

At 8-0am on 6 July 1983 Fell was visited in his cell by Inspector Ransier who was in charge of the police station. Fell made no complaints about the conditions of his detention and stated that he wanted “legal aid”.

At 9-45am Fell was seen by DCI Long and PS Searle who enquired after his welfare. He said that he was all right. He stated that he had been rethinking the questions and answers from the previous interviews but he was told to reserve anything he wished to say until a formal interview was conducted.

The third interview took place between 10-40am and 12-50pm. Again he was cautioned. He was told that somebody had gone to see his wife to ensure that she was all right. Fell continued to deny that he had ever been on the common. He stated that he did not know the whereabouts of Anglesey House. He stated that he did not know where he had been at the material time or during the day of 10 May 1982 at all. At the end of the interview Fell again asked about legal aid.

The fourth interview took place on the same day, 6 July 1983, between 2-30pm and 4-0pm. Again Fell was cautioned and he said that he did not know what he had been doing on the day of the murders. He said that he could not have been on the common. It was during the fourth interview that Fell asked to be taken to the common.

Fell was taken to the area of the attack by DCI Long, DS Vincent and PS Searle. Before embarking on the journey to the common Fell was cautioned. It was during this visit to the common that Fell stated that the fence surrounding Anglesey House appeared familiar. He said however that he had not visited that common before and that the only location on army land that he had visited was at Tweesledown racecourse, some two miles away, on a map-reading course.

Following his return to Farnborough police station at about 6-40pm Fell asked to see DCI Long. Fell said that he had been thinking about what had happened on the common and he said “it’s that fence, I’ve been along there before I’m sure I have. I’m not sure I think it may have been the day.”  DCI Long interrupted Fell and told him that it was in his interest for anything that he had to say to be tape-recorded.

This led to the fifth interview which took place between 6-45pm and 7-45pm. Fell again was cautioned and in summary stated that he remembered walking on the common along the track past (what was in fact) the murder scene; that he was depressed and that he had stayed on the common for about ten minutes; that he had seen a man catching rabbits, a man running, two landrovers and a boy and a girl with white hair; and that he had not seen nor killed the two women. In the course of this interview Fell again asked about legal aid.

At about 11-20am the following day, 7 July 1983, DS Vincent and PS Searle took Fell to the common to retrace his steps. Before the journey, in a conversation with PS Searle initiated by Fell, Fell said that he could not remember and then asked the difference between murder and manslaughter. The officer explained the difference between the two offences and said that if there was something wrong with him (that is Fell) he could look at the fact that if he was convicted of manslaughter rather than murder that would have a bearing and relevance to the future. Fell said that he had not killed anyone.

Following this second visit to the common, and on his return to the police station, DCI Long visited Fell in his cell. During this conversation the following exchange took place.

Fell: “My wife, I’m worried about her. Will I have to go to court”?

DCI Long: “I don’t know at this stage but a decision will have to be made sometime soon”.

Appellant: “What could I go to court for?”

DCI Long: “If at the end of the day it is considered you are the person who killed the women, as you well know, we must look at it as murder”.

Fell: “That’s life isn’t it?”  DCI Long: “The maximum sentence but that is if you went out with the intention to kill those women. At least it would be manslaughter”.

Fell: “What’s the difference, that’s life as well”.

DCI Long: “With murder you have the intention to kill before the act where manslaughter is where an unlawful killing takes place but there is no prior intention to kill”.

Fell: “It doesn’t make any difference. I’ve lost my wife and everything”.

Fell said “I keep getting these flashes, I remember sitting by that concrete thing, (a reference to a tank-trap). I think I saw the two women, I think they spoke to me they were laughing, I attacked them.”  When asked “are you positive” he replied “I think I did there was two dogs one was running about. I went crazy and I don’t remember a knife.”  Fell was told not to say anything further until it could be recorded.

Fell was then taken to an interview room and interviewed. That interview took place between 1-33pm and 2-45pm. After being cautioned Fell admitted that he had seen the two women as he came down a hill and that they were by a derelict shed. The women were laughing at him, the trees and everyone were laughing at him. He attacked the dark woman (Mrs Johnson) with his fists causing her to fall down to the ground. He could not remember attacking the other woman. He was feeling “down” and his mind was confused. He thought he was still in the army. He gave as his motive for the attack the fact that he hated his mother and his treatment at her hands. In answer to the question “can you explain to me why both of them were killed?” he answered “no I just remember can’t care she reminded me of my own mother, I think she is the same height.”  He went on to say that he had picked up a long white stick which broke. He denied owning a green jacket or any knife other than a 2 inch sheath-knife which he no longer had.

At the end of the interview Fell was returned to his cell. Within an hour he again asked to see DCI Long and he retracted his confession saying “I didn’t kill anyone, I didn’t see those women, I don’t even think I was on the common.” 

Fell was again taken to be interviewed and between 5-45pm and 6-03pm he retracted his admission but maintained that he hated his mother. He said that he had gleaned the information used in the admissions from press reports of the incident. In this interview he explained a number of times that he had made his previous admission because he thought that time was running out and the inference is clear that he had decided to make an admission which would be likely to lead to a charge of manslaughter rather than murder.

Nothing that Fell said in the admission interview, nor indeed in any of the interviews, could be regarded as some special feature which could only have been known to the person committing the murders. Indeed, Mr Perry did not suggest that this was a case in which any reliance could be placed on special features of the admissions as demonstrating that only the murderer could have made the admissions that Fell did. Indeed, Fell’s description of what he did was inconsistent with the way in which the murders were likely to have been carried out.

On 8 July 1983 Fell was admitted to bail. Prior to being released from custody an identification parade was held. Brian Hackney, the only witness to attend the parade, failed to identify Fell, although he said that Fell was the only one on the parade who resembled the man he had seen. Because of the lapse of time however, he said that he could not be sure.

During the period July 1983 until October 1983 two areas of enquiries were pursued.

Fell’s mother was seen. Facially she was not dissimilar to the victim Johnson as portrayed in the photograph in the press in 1982. She was also short, being 5’1”. Johnson measured 4’10”. It seems that Johnson’s photograph, as published in the press at the time, was in fact a passport photograph taken many years previously, and would thus give the impression of a very much younger lady than Johnson in fact was. The two were otherwise dissimilar, in particular Johnson was slim whereas Fell’s mother was not.

The other area of enquiry related to the arrival of Fell at his place of work on 10 May 1982. Up until the time of the telephone conversations from Bournemouth, the position was that Fell himself had at all times maintained that he was at work at 3-30pm and there was no evidence from his colleagues or his manager to contradict that. However, between the time of those conversations and October 1983 the police made further enquiries. That led to Stone remembering that on the particular day Fell had arrived late at work after 4 o’clock. She remembered that fact due to Keable having given instructions that the employees were to come in to work earlier and to work a period without extra pay. In protest Stone and Bennett had decided to arrive late. They both said that they arrived at work at 4-0pm and Fell arrived after that, smartly dressed. It is right to say that Keable did not fully support this version, albeit he too gave a further statement saying that Fell arrived at work after 4 o’clock.

On 18 October 1983 Fell was charged with murder.

The Trial

The trial took place between 9 July and 9 August 1984. An application was made to exclude the evidence of the interviews. The judge said “have the prosecution proved that the contested statement was voluntary - and have they proved beyond reasonable doubt that it was not obtained by fear or prejudice or hope of advantage excited or held out by a person in authority or by oppression?”

He said they were voluntary. He was satisfied that Fell was repeatedly cautioned; the partial confession was initiated by Fell without prompting from the police; the acts and motives to which Fell confessed differed in important respects from suggestions by the police; the interviews were not conducted in an oppressive or unfair manner.

The judge found the refusal of access to a solicitor was a deliberate refusal. He found that if a solicitor had been present Fell would have been advised not to make any confession or any statement. He said it did not follow that the statements made were involuntary.

The judge said that he had considered the argument that a breach of the Judges’ Rules automatically should lead to the exclusion of a statement obtained in disregard of those principles - the authorities do not establish that proposition. I propose to admit the evidence of the conversations.

24 July, PS Searle brought to the attention of counsel the exchange that had taken place with Fell on 7 July 1983 (the difference between murder and manslaughter). The judge again ruled “that the partial confession made by the defendant has not been obtained from him by hope being held out by a person in authority.”

The defence submitted that the case should be withdrawn from the jury but that was rejected. Fell did not give evidence, but evidence was called in support of the alibi. Hewer, an employee of Barclays Bank, thought that the cheque entered on the bank’s computer at 3-47pm on 10 May 1982 was probably cashed between 2-30pm and 3-30pm that day. She did not think that it was cashed on the morning of that day and entered on the computer later.

At the conclusion of the evidence the judge reminded the jury of their right to acquit. We take the view that the summing-up cannot be criticised. The judge reminded the jury of the alibi evidence. The jury Fell of murder on both counts.

The Appeal 14 November 1985

The Court of Appeal dismissed the application for leave.

The Present Appeal

As already indicated, this matter has been referred back to the Court of Appeal by the Criminal Cases Review Commission under the Criminal Appeal Act 1995. Section 13 of that Act provides as follows:-

(1)  A reference of a conviction . . . shall not be made under any of sections 9 to 12 unless-
(a) the Commission consider that there is a real possibility that the conviction . . . would not be upheld   were the reference to be made,
(b) the Commission so consider -
(i) in the case of a conviction . . . because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or . . ., and
(c) an appeal against the conviction . . . has been determined or leave to appeal against it has been refused.
(2)  Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.

This was not an exceptional circumstances case, but a case where there was a real possibility that the conviction would not be upheld, because of an argument or evidence not raised in the proceedings or in the application for leave to appeal.

It was considered that the Court of Appeal would receive evidence not produced at the original trial. The Commission saw three problems.

Once a reference to this court has been made, it is open to this court to examine all grounds whether or not considered by a Court of Appeal previously. It is the safety of the conviction with which the court is concerned. There is psychiatric evidence not available at the trial, which cast doubt on the reliability of the admissions made by Fell. It is only in recent years that psychiatric evidence of this nature has come to be recognised as of assistance to the judge and to the jury.

Fresh Evidence

The Criminal Appeal Act 1968 provides that the Court of Appeal may order the production of anything connected with the proceedings, which appears necessary for the determination of the case; order any witness to attend for examination whether or not called in those proceedings; and  receive any evidence which was not adduced in the proceedings. It will have regard to whether the evidence appears to be capable of belief; may afford any ground for allowing the appeal; would have been admissible in the proceedings and whether there is a reasonable explanation for the failure to adduce the evidence in these proceedings.

The evidence of Gudjonsson, Kopelman, Joseph and the prison doctor concluded that the admissions made by Fell were, in all probability, unreliable.

Approach Of The Court

Once the court is conducting a review as to whether a conviction is safe, it is impossible to conduct that review other than through present day eyes.
In R v O’Brien, Hall & Sherwood:
"This court has to decide whether these convictions are safe or unsafe. To do that we must apply the substantive criminal law that was in force at the time of the trial in 1988. However, we judge the conduct of the investigation of the case, the conduct of the trial, the directions to the jury and the reliability of the evidence on which the jury acted in accordance with the standards that this court now applies. R v O’Brien made an important point in relation to expert evidence."

False Confession Cases

R v David Stuart Mackenzie (1993): where the prosecution case depends wholly upon confessions; the defendant suffers from a significant degree of mental handicap; the confessions are unconvincing, then the judge should withdraw the case from the jury. The confessions may lack incriminating details; be inconsistent with other evidence, or be inherently improbable. Cases depending on confessions (like identification evidence) have given rise to miscarriages of justice.

 A number of other cases were discussed here, particularly with regard to the role of the expert witness in such cases. 

The Importance Of The Admissions

The admissions were central to the Crown’s case. As the judge said, if within 30 minutes of the murders, he was cashing a cheque at Barclays, the best part of two miles away, then he is very unlikely to have been the killer. The other side of that coin, is that if you are satisfied that the defendant was the murderer, then there must be some other explanation of the cheque cashed at Barclays Bank. The Crown’s case had to be that the jury could be so sure that the admissions were reliable, that they could discount the alibi without knowing precisely on what basis.

There was some other evidence which could be said to support the admissions, i.e. that he had a knife of the kind likely to have been used (which he denied); that he had a camouflage jacket (which he denied); that he arrived late for work in smart clothing (which he denied); that Fell’s mother was of small stature (as was Johnson) and that Fell hated his mother. The Crown properly conceded there could have been no case without the admissions.

Reliability - The Psychiatric Evidence

Gudjonsson has a considerable reputation in the field of Forensic Psychology, and particular expertise in confessions, having developed certain techniques for measuring “Suggestibility” “Compliance” and the like. His conclusions are that Fell had an exceptionally high level of compliance. His “shift” suggestibility scores were somewhat elevated, but nevertheless fell within normal limits. He appears to have difficulties in detecting discrepancies between what he observes and what is suggested to him through leading questions.

Kopelman, Professor of Neuropsychiatry - it seems likely that Mr Fell could not remember the events of the day in question. Following his hoax telephone calls (to which he readily admitted), he was interviewed by the police in May 1982, and again over three days in July 1983. He was man of low self-esteem, who had been dismissed from the army, and who was known to be something of a story teller. The transcripts of the police interviews suggest that Mr Fell came under considerable pressure from the police to make admissions regarding the offence. Despite this, he made consistent denials until he had been taken to the site of the murders on two occasions, after which he had an apparent ‘recovery’ of his memories, which I do not regard as convincing, considering that it had occurred 15 months after the alleged offence and that the ‘confession’ was retracted a couple of hours later. Mr Fell was not given the legal support that he requested, nor was he given medical advice when he sought it. In the light of these various factors, I would regard his conviction as unsafe to the extent that it was largely based on this ‘confession’.

Dr Joseph, is an eminent Forensic Psychiatrist. His conclusions were that 17 years had elapsed since he was interviewed by the police and there is likely to have been personality maturation during this period.  It is likely Fell was suffering from a personality disorder in the period leading up to the killings, characterised by low self-esteem, psychological dependence on others, feelings of rejection and abandonment and displays of attention-seeking behaviour to compensate for these feelings. Although he was depressed and abusing alcohol, both these features are likely to have been secondary to his personality difficulties rather than constituting a mental disorder themselves.

I conclude that Fell was extremely vulnerable in the period leading up to and including his arrest. It is notable that he made hoax telephone calls after he separated from his girlfriend and subsequently after his wife left him. The hoax calls drew attention to him when feeling abandoned, rejected and lost. He was prone to telling lies about himself in order to make himself seem more impressive to others and there is a previous example of his lying about a conviction for violence to the police. Any admissions he made would be unreliable. This is especially so when he was denied the assistance of a solicitor. If he had been interviewed today then he would have also required the services of an appropriate adult to protect him during an interview with the police.

Contemporaneous Evidence

The material before us has been taken into account by the psychiatrists in forming the views they did. That included Fell’s regimental conduct sheet which demonstrated how he had made up stories about being attacked or having things stolen from him. It showed there was no truth in his assertion that he had been dismissed from the Army because of committing an offence of GBH. He convinced the police during the inquiry “that he could handle himself”. He had boasted of fighting in the Falklands, and there was simply no substance in that.

In Dr Pitcher’s Report made for the purposes of considering Fell’s mental health at the time of the trial, it said amongst other things “it is also evident from his account to me and from his statements to the police that almost nothing he says can be relied upon unless it is corroborated”.

Dr Ilbert recorded his view of Fell as a “pathological confessor” and the element of inner relief from tension gained by confessing.

The contemporary evidence supports the psychiatric evidence. That casts serious doubt on whether the telephone calls could be regarded as in any way reliable as admissions, and casts serious doubt on whether admissions made in interview were reliable.

The Interviews and Telephone Calls Themselves

The starting point seems to us to be that if the above evidence had been before the jury their approach to the telephone calls and interviews would have been very different.

One can see from the interviews how once the police had an admission that the calls were made by Fell, the pressure on Fell gradually built up until it became overwhelming. The sheer length of the interviews, the non-communication for 54 hours other than with the police, the lack of food, and the method of interrogation all contributed. Finally under the impression he may have gained that time was running out and that he was bound to be charged with something, it seems that he sought the compromise of seeking to admit to manslaughter, not murder. When however he did so, he not only did not talk of any special features that only the murderer would have known but was inaccurate about many of the features of the murders e.g. he suggested he hit and punched in the face but no sign of such injury was present on the victims; he described seeing two children, and DCI Long accepted in evidence that “no-one there of that description at the relevant time”; he said he spoke to a man going rabbit shooting, but there would not seem to have been any such person; he said he attacked the dark-haired woman first but DCI Long accepted that in all probability the fair-haired lady was attacked first; the dark-haired lady was in her 60s and slim, and bore very little resemblance to Fell’s mother who was 42 and certainly not slim. They were both short but even then there were 3 inches difference in height.

If the evidence we have heard had been before the jury, would the only reasonable and proper verdict of the jury have been one of guilty?  We are clear that the answer to that question must be in the negative, and indeed, the longer we listened to the medical evidence, and the longer we reviewed the interviews, the clearer we became that Fell was entitled to more than a conclusion simply that this verdict is unsafe. There are strange features of the case, not least his failure to support his own alibi, but the alibi exists from an independent source. But more important, since our reading of the interviews and the evidence we have heard leads us to the conclusion that the confession was a false one, that can only mean that we believe that he was innocent of these terrible murders, and he should be entitled to have us say so.

Other Grounds

Mr Perry for the Crown took us through the other grounds relied on by Mr O’Connor one by one submitting in relation to each that they would not have provided a basis for suggesting that the jury’s verdict in this case was unsafe. On grounds 1 and 2 (the decision by the trial judge to admit the interviews and the admissions contained therein), he pointed out how the trial judge, after a voire dire lasting 5 days including hearing the evidence of the police officers concerned, considered with care the question of oppression, tricks, inducements, and denial of access to a solicitor. The judge had furthermore considered whether in his discretion he should exclude the admissions, and had declined to do so. The judge’s ruling was upheld by the Court of Appeal in refusing leave to appeal.

Those points may be powerful in the absence of the fresh evidence. But, as Mr Perry recognised, once the psychiatric evidence is admitted these other points must be looked at in a different light. The first question which was considered by both the trial judge and the Court of Appeal was whether the admissions were voluntary. This they did before considering the question whether, in the court’s discretion, the admissions should be excluded.

The evidence we admitted showed that experts with an experience which the judge and the jury, and indeed the previous Court of Appeal would not have, were of the view that the admissions were unreliable. There would have been a danger in allowing the admissions to go before the jury if the judge was clearly of the view that it would be unsafe to act on them. It seems to us that the evidence we have heard would have added significantly to a submission that there was a need for someone such as Fell to have a solicitor present before reliance could be placed on any admission he was making. A simple listening to the tapes might well indicate the absence of bullying or oppression in that sense, but the evidence would also add force to the submission that the sheer length of the interviews, without food, and the method of interrogation without the protection of a solicitor, would be likely to lead to an unreliable and indeed a false confession.

It would seem plain now to us, with the benefit of this evidence, that the case for excluding the admissions would have been even more powerful than it was, and indeed we would have expected the judge to have excluded them.

Without the admissions there would simply have been no case fit to go to the jury.

Police Conduct

So that there should be no misunderstanding we think it right to record that we think the decision of the police not to allow this appellant a solicitor was reprehensible.

We do not think it right to make findings of “oppression” in the sense of misconduct by the police, or of “tricks”, insofar as that imputes bad faith on the police who conducted these interviews. We do not think that there is any evidence that the police in some way misconducted the inquiries during the period between Fell being interviewed and Fell being charged. They allowed their quest for a conviction to override their responsibilities to an accused, and particularly to a vulnerable accused. If that fundamental right had not been denied this appellant a false confession would not have been made. We do not however make any other finding of misconduct against the police in this case.

Alibi

Fell never himself gave evidence to support the alibi. He never mentioned visiting the bank. The cashing of a cheque was only discovered by the hard work of the solicitor acting for Fell at the trial during 1984, and thus it was that the statement of Mrs Hewer was only obtained in July 1984. But the dismantling of the alibi by the Crown was not attempted on any basis other than that if the admissions were true, then the alibi must be false and there must be some explanation other than that Fell cashed a cheque personally on that afternoon. Once the admissions are shown to be suspect, the defeat of the alibi itself becomes suspect.

Non-disclosure

We doubt still whether they add much to a conclusion which we had already reached that these convictions are unsafe.

We announced at the conclusion of the hearing on Friday 2 March 2001 that the convictions would be quashed for reasons to be given later. These are those reasons.

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