R v O’Brien, Hall and Sherwood 2000 UK

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

List of Australian, UK and USA miscarriage of justice cases
Article on UK miscarriage of justice cases
Article on Australian miscarriage of justice cases
Article on USA miscarriage of justice cases

Court of Appeal - Tuesday,  25th January 2000

Lord Justice Roch

In  October 1987 Philip Saunders, was attacked and robbed as he returned to his home in Cardiff. He died five days later. He was last seen alive outside a public house close to his home at 1105 pm. At 11.19 p.m. a neighbour made an emergency telephone call to the police. Saunders was 52 years of age. He owned three kiosks in the centre of Cardiff from which cigarettes, newspapers and sweets were sold. It was his routine to call at his kiosk at the Central Bus Station in Cardiff each evening at about 9.30 pm to collect the days takings which he would take home with him. When police arrived at the scene they found Saunders lying in the front garden severely injured, a spade, a £10 note and a £1 coin in the garden. No money was found on Saunders.

The unchallenged evidence of the pathologist, Professor Bernard Knight, was that Mr Saunders must have received five blows to the head causing extensive fractures of his skull. Very great force was used. The skull was shattered. The spade found in the garden, in Professor Knight’s opinion, could have caused all or any of the injuries to Mr Saunders’ skull.

Police mounted a major investigation, which involved the arrest and questioning of 42 suspects. Three of those suspects were the appellants. They were arrested and interviewed at the end of October, and all three were released, despite the fact that Hall made admissions (which were doubted) of being involved in the attack. Further enquires were said to have produced evidence incriminating Sherwood and O’Brien. The three were re-arrested and charged with robbery and murder.

The Appellants’ Trial

Hall pleaded guilty to robbery and tendered a plea of guilty to manslaughter. The Crown accepted the plea to robbery but would not accept the plea to manslaughter.

The jury (by majority) convicted O’Brien and Sherwood of robbery and all three of murder. The judge passed sentences of custody for life on all three, being under the age of 21; O’Brien being then 20 and Sherwood and Hall 19. Leave to appeal was refused.
Now there is this reference to this court by the CCRC.

The three agreed that they were together at the time the attack took place. They left the home of Sherwood’s sister, Mandy at about 10pm with the intention of stealing a car. They remained together until they separated some time after 11.30 pm 1½ miles from the home of Saunders. Hall had gone to the home of a bus driver whom he knew (Baynham) arriving after 11.30 p.m. Baynham said that Hall was his usual scruffy self. O’Brien and Sherwood had gone to the home of a friend of theirs (Yates) arriving there between 11.30 and 11.45 p.m. Yates said that they were normal in appearance and demeanour. There was no blood on either of them, nor was there anything unusual about them.

Hall had suggested that Mr Saunders should be robbed. He had realised some harm might come to Mr Saunders but not serious harm or death. He said he acted as a lookout and that O’Brien and Sherwood had attacked him. They had taken money and Hall had some £70 of it.

O’Brien and Sherwood said neither they nor Hall had had nothing to do with the attack on Saunders. They said they were all innocent, whilst Hall said they were all guilty. The judge reminded the jury that the case of Sherwood and O’Brien, in that respect, flew in the face of common sense, because if Hall was not guilty of anything, he would have said so and would have relied on the evidence of O’Brien and Sherwood to provide him with an alibi.

The Prosecution’s Case Against Hall

The case against Hall consisted of his answers to police; a conversation he had had with a prison officer and the evidence of Forde of conversations with Hall whilst both were on remand.

The Prosecution's Case Against Sherwood

Christopher Chick said he and Sherwood had a conversation about “knocking someone off”. Chick refused and Sherwood said he’d get someone else. Chick’s said Sherwood had been watching a man who had a shop. Later that week Sherwood told Chick they had robbed Saunders and he had hit Saunders with a shovel. Sherwood and O’Brien had rolls of bank notes in their possession. Catriona Morgan said Sherwood had told her he had had nothing to do with the murder. Her evidence conflicted with Sherwood’s account of his movements on the night of the murder.

Robert Bradley had asked Sherwood why he was in prison and Sherwood had replied that he was on a murder charge. Sherwood’s sister had then asked him who had committed the murder and Sherwood replied “Mike done it; we were there.”  Ricky Forde said he had spoken to Sherwood about the murder when they were on remand.

The police said Sherwood lied about the movements of himself, Hall and O’Brien that night. The most powerful evidence against Sherwood was that of DI Lewis. Sherwood and O’Brien were in neighbouring cells at the Police Station. Lewis overheard a conversation between Sherwood and O’Brien in which O’Brien had said three times that he could not hold out much longer and he might have to tell the truth. Sherwood had told him not to do so because if he did they would be facing life sentences.

The Prosecution’s Case Against O’Brien

This consisted of the evidence of Chick and Morris as to conversations they had with O’Brien and  O’Brien’s false accounts of his movements and those of Hall and Sherwood on that Monday night and the evidence of Lewis of the conversation in the cells.

Hall’s Evidence

The cases against Sherwood and O’Brien were greatly strengthened when Hall gave evidence that he was a lookout, but not involved whilst the others killed Saunders. It is surprising that two members of the jury should not have been convinced. Sherwood and O’Brien were able to demonstrate to the jury that Hall had started by lying about his movements that night.

Hall’s Conduct Following His Conviction and Sentence

Following his conviction, Hall continued to assert the guilt of all three for a number of years. In July 1991 the Head of Medical Services at Dartmoor Prison recorded Hall as admitting hitting Mr Saunders twice and then “taking off” at a stage when Mr Saunders was still alive. Hall said that his two friends then beat Mr Saunders to death.

In July 1993 by the Acting Senior Medical Officer at Dartmoor Hall is recorded as giving an account of the offences similar to the evidence he gave at trial. Hall claimed to have spoken to the victim’s son and to have apologised for what had occurred. He said the victim’s son had accepted his apology but had said that Hall would have to live with the death on his conscience for the rest of his life. Saunders did not have a son. Hall’s account appears to have been accepted without question by those to whom he was speaking.

In 1994 Hall was moved to Grendon Prison where they had group therapy. There he began to give a different account. He said he had been a rent boy in Cardiff and had lived with a man called George.  George had introduced him to Mr Saunders who was homosexual. After the relationship between Hall and George ended Hall had been raped by two men in the presence of Saunders and possibly at his instigation. By December 1994 Hall was saying that he had killed Saunders. These confessions were accepted as being true by those in charge. They spoke of Hall’s courage in admitting his role and of his being “overwhelmed with guilt and remorse”.

In January 1995 Hall asked his trial solicitor, Mr Mumford to come to see him and confessed to him that he had committed the murder using a stone or paving stone. Subsequent investigation has produced no evidence that Mr Saunders was a homosexual.

In 1996 Hall had been involved in a BBC Wales television programme in which he had maintained his innocence. The Medical Officer observed that Hall “Certainly has difficulties separating fact from fiction”. By March 1997 Hall was telling the prison authorities that he was in prison for a crime he had never committed and that he and his co-accused were innocent.

The Grounds Of Appeal

The grounds of appeal in the case of Hall are that his confessions his evidence at trial were and remain unreliable. That renders his conviction unsafe. A subsidiary issue is whether this court should receive fresh evidence, from lay and expert witnesses.

Sherwood says that Hall, can no longer be relied upon as a basis for a guilty verdict, and much of the other evidence (the cell confession) is in doubt and the disappearance of certain documents cast doubt on the integrity of the police investigation into the issue of the guilt or innocence of the three appellants. The original notes of the police interviews of Hall could no longer be located in 1994. At that time the original notes of the police interviews with Sherwood and O’Brien were available but in 1998 those notes could not be found. The note made by DI Lewis of the alleged cell conversation likewise cannot be traced.

O’Brien says that Hall suffers from a mental abnormality or personality disorder which pre-disposes him to lie and fantasise and that a substantial portion of the evidence which provided support for Hall’s trial testimony has been retracted.

The Experts’ Evidence

Professor Kopelman found that Hall had low self-esteem, wanting to prove himself “one of the gang”. In his view Mr Hall fulfilled the DSM-IV criteria for anti-social personality disorder and the ICD-X criteria for dissocial personality disorder. Hall showed many of the features of a pathological liar.

Dr Gudjonsson concluded that Hall had an abnormally strong predisposition to criminality, and was more compliant than 98% of the general population. He is exceptionally eager to please and tries to avoid conflict with those in authority.

Dr Thomas-Peter was of the view that Hall did not fulfil the criteria for personality disorder, but was rather immature and had an abnormal degree of impulsivity. It would follow that confessions obtained from Hall might be unreliable due to an abnormality which was shown in the tests for impulsivity. That was an abnormality on which an expert could throw light. It was unlikely to be spotted by a lay person, in the view of the witness.

Dr Thomas-Peter was an impressive witness because when invited by counsel in cross-examination to go beyond his expertise and stray into the province of this court the witness responded by saying “That’s a conclusion that I wouldn’t draw”.

The Perception of Those Acting for Hall

It is clear that the abnormal personality traits identified by the expert witnesses in their evidence to this court were not appreciated at the time of the appellants’ trial. It follows that the jury must have been totally unaware of Hall’s background, medical history, suicide attempt and those facets of his personality relevant to the evidence he gave inculpating himself and his co-defendants in these offences.

The Role of This Court

This court has to decide whether these convictions are safe or unsafe. 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- Mills [1998] and R v Bentley.

The practices followed by the police and the reliability of evidence thus obtained are to be judged by present standards, including the reliability of admissions made by persons who are vulnerable. The understanding of this phenomenon today is much greater than it was in 1987 and 1988.

Admissible evidence from psychiatrists or psychologists is not confined to evidence of “a personality disorder so severe as properly to be characterised as a mental disorder”. The evidence which we heard related to matters which would be outside the experience of a jury.

The prison records relating to Sherwood and O’Brien have been seen and show that they have consistently maintained their innocence over the 11 or more years that they have been in jail. Those acting for Sherwood and O’Brien were not in a position to call the evidence which this court has heard concerning the personality traits of Hall. Any expert instructed on their behalf would not have had access to Hall’s medical history and could not have interviewed Hall.

We are satisfied that Hall’s evidence played a central and crucial part in the appellants’ trial and that if we cannot be sure that his evidence could be acted on safely by the jury, these appeals must be allowed.

Witness Retractions

We have been informed that a number of the prosecution witnesses have retracted their evidence against Sherwood and O’Brien. The submission made on behalf of the appellants is that we should take account of those retractions. Whilst we do not ignore them completely, we are not impressed by them nor do we attach much weight to them.

The reliability of evidence other than Hall’s

Some of the remaining evidence which on the face of it was strongly incriminating of Sherwood and O’Brien, namely that of Chick and Helen Morris was, by the time those witnesses left the witness box substantially undermined by cross-examination.

That leaves the evidence of DI Lewis of the overheard cell conversation.  When DI Lewis gave evidence at the appellants’ trial there was little scope for cross-examination to undermine his evidence that he had overheard an incriminating cell conversation other than the fact that the entry in the custody record of that conversation being overheard started with the time 20.43 whereas it must have been entered between 20.50 and 21.50. This apparent discrepancy was readily explained by DI Lewis saying that the 20.43 was the time of the conversation that he overheard and not the time of the entry in the custody record.

We have had drawn to our attention the trial of Griffiths & Others at Cardiff in September 1983, a trial known as the Welsh Bomb Trial. In that case a number of people including Robert Griffiths and a Nicholas Hodges stood trial on various charges relating to attacks with explosive devices on thirteen targets in England and Wales between March 1980 and March 1982. The cases against a number of the defendants in that trial and in particular the cases against Hodges and Griffiths depended on admissions said to have been obtained from them during interview at Rumney Police Station Cardiff. The note taker who recorded those interviews was DI Lewis, then a DS. The accuracy of the recording of those interviews and the veracity of the interviewing officers were in issue at that trial. It was also the defendants’ case that they had been subjected to oppression whilst in police custody. Griffiths and Hodges were acquitted of the charges against them. Because of the number of incidents and the breadth of the inquiry, the West Midlands Serious Crime Squad were involved in the investigation of these offences.

There was a significant occurrence during the course of the proceedings namely, that a typed copy of hand-written notes prepared for the committal proceedings contained words which did not appear in the typed version of that hand-written statement prepared for trial. The typed copy prepared after the committal, which replaced the pre-committal typed version of the statement accurately represented the manuscript. Mr Elias, who was junior counsel for the prosecution at that trial, conceded that it was clear at the trial that there had been some “monkey business”, to use his words, in relation to the typed copies of the manuscript notes. It was his recollection that it was thought that the improper copying of the manuscript notes was attributable to members of the West Midland Serious Crime Squad, a group of police officers who have since become notorious, and was not the result of any action by a South Wales police officer. Be that as it may, it is difficult to see how additional words could be inserted into a typed version of notes which were apparently made by DS Lewis, without his having been aware of that happening. In any event we accept the submission made by counsel for the appellants that DI Lewis would now be liable to be cross-examined about his part in the Welsh Bomb trial and about how it could have occurred that additional words appeared in a typed copy of notes made by him. Such cross-examination would come within the categories of material which are relevant and admissible to be put to police officers when their credibility is in issue see R v Edwards [1991].

We are satisfied that cross-examination of DI Lewis in the light of the information now available would be much more effective than the cross-examination he faced at the appellants’ trial and the chances of the jury being unsure as to whether he was speaking the truth or not would now be much greater.

Finally in the case of O’Brien, his interview admitting that he had been with Sherwood and Hall on the night of the 12th October to take a car, and evidence of his accompanying police officers to and pointing out where he and Sherwood had entered the car park, and where Hall had stood, would now be inadmissible. There were fundamental breaches of PACE in respect of O’Brien the gravest of which were the handcuffing of him to a radiator and to a desk. The custody record, particularly in respect of the first series of interviews, showed that there were periods of hours when he was not in the custody of the custody officer and was not being interviewed. O’Brien when he gave evidence claimed that he had been interviewed “off the record”. Those gaps in his custody record and in the records of his interviews mean that the respondents cannot make us sure that “off the record” interviewing of O’Brien did not take place.

The Reliability of Hall’s Evidence

We are satisfied that Hall is and was a person having traits in his personality of the kind associated with those who make false confessions. We are satisfied that had a jury heard the medical evidence that we have heard and had evidence of the unsatisfactory way in which the interviews at the Canton Police Station, and particularly those of Hall, were conducted, a jury would probably have taken a different view of the reliability of Hall’s assertions. That conclusion, in our judgment, is sufficient to determine these appeals and to lead us to the conclusion that these convictions were unsafe and should be quashed.

In the light of the very full and helpful submissions that we have had from counsel, and in particular from Mr Fitzgerald we add this postscript. At one time the law was thought to be that expert evidence of the kind we have heard could only be admitted if that evidence showed a recognised mental illness, this being the interpretation placed upon R -v- Turner [1975] QB 834. It has now been accepted that expert evidence is admissible if it demonstrates some form of abnormality relevant to the reliability of a defendant’s confession or evidence, see for example R v Ward [1993]. In the case of Ward at page 66 this court said:

"But we conclude on the authorities as they now stand that the expert evidence of a psychiatrist or a psychologist may properly be admitted if it is to the effect that a defendant is suffering from a condition not properly described as mental illness, but from a personality disorder so severe as properly to be categorised as mental disorder."

Despite what was said there in the case of Ward, the test cannot, in our judgment, be whether the abnormality fits into some recognised category, such as anti-social personality disorder. That is neither necessary nor sufficient. It is not necessary, because as R v Roberts showed, the real criterion must simply be whether the abnormal disorder might render the confession or evidence unreliable. It is not sufficient because an anti social personality disorder does not necessarily mean that the defendant is a compulsive liar or fantasist or that his confession or evidence might be unreliable.

The members of this Court, as were all counsel who addressed us, are conscious of the need to have defined limits for the case in which expert evidence of the kind we have heard may be used. First the abnormal disorder must not only be of the type which might render a confession or evidence unreliable, there must also be a very significant deviation from the norm shown. In this case the abnormalities identified by the experts were of a very high level, Hall’s test results falling within the top few percentiles of the population. Second, there should be a history pre-dating the making of the admissions or the giving of evidence which is not based solely on a history given by the subject, which points to or explains the abnormality or abnormalities.

If such evidence is admitted, the jury must be directed that they are not obliged to accept such evidence. They should consider it if they think it right to do so, as throwing light on the personality of the defendant and bringing to their attention aspects of that personality of which they might otherwise have been unaware.

The evidence, both factual and expert which has been placed before us has satisfied us that this is a case in which such evidence would now be admissible, and that a jury having heard such evidence may well have reached different verdicts.

Top of Page