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R v McIlkenny and others 1991 (The Birmingham Six)

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 27 March 1991

Because of the constitutional primacy of the jury in criminal cases the function of the court of appeal is limited to determining whether the verdict of the jury can stand. It has no power to say whether the appellant is innocent or guilty.

During 1974, the IRA launched a bombing campaign in the Midlands. In November 1974 there were explosions at 2 pubs in which 21 people were killed and 162 injured. The previous week, McDade had been killed when a bomb he was planting at the Coventry telephone exchange went off accidentally. 5 of the 6 (not including Callaghan) decided to attend the McDade funeral in Belfast. All except Paddy Hill were to meet at the railway station in Birmingham, and then get the train to Heysham and then the night ferry to Belfast. Power arrived at the station at 6.40pm. McIlkenny, Hunter, Walker and Callaghan arrived around 7pm. They were to have caught the 6.55pm train, but instead caught the next one at 7.55pm. Hill did not arrive at the station until 7.45pm. Callaghan said he was only there to see the others off. Hunter made 2 calls to Belfast from the station, and a further one from Crewe.

At 8.11pm there were calls to the Birmingham Post and Mail that bombs had been planted. At 8.18pm the first bomb exploded at the Mulberry Bush pub near the station. A few minutes later the other bomb went off at the Tavern in the Town 300 yards away. A third bomb at Barclays Bank failed to explode. The pub bombs were similar to that at the bank.

The 5 men travelled on the train together playing cards. They arrived at Heysham at 10.45pm. The police picked them up and took them to the police station. The 5 of them were examined by Dr Skuse from the Home Office Forensic Laboratory. He said that Power and Hill had been in recent contact with explosives. He was 99% certain of that. Walker was less certain and Hunter and McIlkenny were negative. Police had then arrived from Birmingham to take over the investigation. There were said to have been a number of interviews and confessions. There were allegations of police brutality. The police were said to have made contemporaneous notes, but Electrostatic Document Analysis raised questions about that, and were the cause of the reference back by the Home Secretary in 1990. By this time only Power had ‘confessed’.

The men were taken back to Birmingham by car. Shortly after further confessions were said to have been made. They were charged with various offences. By the time they arrived in court they had been seriously assaulted, which the judge described as outrageous. 14 prison officers were charged and all were acquitted.

In 1975, the prosecution relied on the fact that Skuse said that Power and Hill had been in recent contact with nitroglycerine. There were then said to be written confessions of Power, Mcilkenny, Walker and Callaghan, and oral confessions of Hunter and Hill. There was also circumstantial evidence. They variously said they were visiting relations, many of whom they had not seen for years. Whilst there was evidence from Dr Black that the initial tests for NG should have been confirmed by subsequent tests which were negative, the judge made clear that he preferred the evidence of Skuse.

When the accused said the confessions had been obtained by beatings, it was argued that they had been obtained prior to the beatings. Bridge ruled that the confessions were voluntary. They were then put before the jury. After their convictions, the judge said the evidence was the clearest and most overwhelming he had ever heard. There was an application for leave to appeal which was dismissed. The argument focussed on the fairness of the summing up. It was not argued that the confessions were inadmissible or that fresh argument should be accepted on the scientific evidence.

Once an application for leave to appeal is dismissed, the Court of Appeal is functus officio. The only way back to the Court is by a reference by the Home Secretary. Matters would have been left there had it not been for the book by Chris Mullen Error of Judgment in 1986.

The matter came back before the Court of Appeal in 1987 on the basis of fresh scientific evidence and an allegation by a former police officer that he had witnessed intimidation of witnesses. He was subsequently discredited. It was argued that some ordinary soaps and detergents could leave nitrates in a bowl which had been cleaned with them and so affected the Griess tests conducted by Skuse. It was also argued that the ESDA analysis showed that the police notebooks of interviews could not have been made contemporaneously and that the police officers had lied at the trial and fabricated part or the whole of the interviews.

The Court of Appeal had not inherent jurisdiction apart from statute. We cannot carry out an open ended inquiry into a miscarriage of justice. We hear appeals and nothing more. Trial by jury is the foundation of our criminal justice system. It is not our job to say whether someone is innocent, merely whether the verdict of the jury can stand. The jury not only finds the facts, but it alone has the task of applying the law to the facts. Equally, in our adversarial system the jury cannot embark upon an investigation. Cross examination of the witnesses in open court is intended to expose any weaknesses in the Crown case. However, the parties are not evenly matched in terms of resources. However, this inequality is ameliorated by the requirement that the prosecution is obliged to make available, all material which may be of help to the defence. No system is better than its human input. Expert evidence may not be properly researched or there may have been a deliberate attempt to undermine the system by giving false evidence.

In the appeals, it is for appellants to make out their case. Scientific issues could have been raised then. However, in 1987, no one suggested that the nitrate contamination could have been from the soap used to clean the bowls. Nobody knew the ‘contemporaneous’ notes had been written on 4 different pads. The prosecution had taken the view that they could not support the scientific evidence on which the prosecution had been based.

It is of course for the court and not the DPP to consider whether a conviction is unsafe or unsatisfactory. Walker claimed his confession was as a result of brutality. He may not have been truthful as to those circumstances. There were some issues about whether Walker had been involved with the IRA and with previous explosions.

The case against Callaghan also rested upon a confession. He only alleges one smack in the face. He said the police had made some of it up.

So how would the fresh evidence have helped determine if the convictions had been unsafe or unsatisfactory? It now appears that the evidence of Skuse is now in doubt. It also appears that certain police officers deceived the court. If the confessions had been shown to be unreliable then the prosecution would most probably have failed R v Lattimore 1975 (Confait case). Some of the inconsistencies went to the whereabouts of the people involved and others to the correct sequence of events. If the jury had doubt about either the confessions or the scientific evidence, as they should have done, then the impact upon them of the fresh evidence would have been considerable. The grave doubt about the evidence of Skuse and the fresh police investigation renders the police evidence at trial unreliable which means that the convictions are unsafe and unsatisfactory. Appeals allowed.

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