R v Anthony Steel 2003 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]

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Court of Appeal - Tuesday 10 June 2003

Lord Justice Rix

This is the appeal against conviction of Anthony Steel, brought upon a reference by the CCRC. Steel was convicted (by a majority of 11:1) of the murder of Carol Wilkinson and sentenced to life imprisonment in 13 December 1979.

The CCRC’s reference was precipitated by fresh evidence in the form of a report from a consultant psychologist, Ms Olive Tunstall, April 1996, which concluded that Steel was educationally retarded and abnormally suggestible and thought to have been potentially vulnerable in the context of being interviewed by the police. Those interviews ended in a confession recorded in a statement made on 25 April 1979. The truth of Steel’s confessions, oral and written, was the central issue of the trial.

Steel was released on licence in 1998. Ms Tunstall interviewed and assessed him a second time in May 2001, repeating the tests administered in 1996. She produced a second report dated 30 May 2001, which concluded that he had a full scale IQ of 65 (falling within what had previously been termed the mentally retarded, or mentally handicapped, range), and that he functioned near the borderline of abnormality in the case of both suggestibility and compliance. The Crown in turn instructed Mr Charles Burdett, a consultant clinical psychologist, to interview, assess and report on Steel. Mr Burdett’s report, dated 19 July 2001, confirmed the findings of Ms Tunstall and concluded that “any confession obtained from Mr Steel would be unsafe”.

Steel’s appeal was presented by Mr Michael Mansfield QC. On the hearing of that appeal, Mr John Kelsey-Fry QC, who appeared for the Crown, did not seek to dissuade the court from receiving the three reports as new evidence in the appeal. While recognising that the question of the safety of a conviction is a matter for the court and not the Crown, he expressed the Crown’s view by saying that he did not feel able to argue that, had the jury heard the evidence of the two psychologists, they would have been bound to arrive at the same verdict. He considered that there was a compelling argument to the effect that the conviction could no longer be said to be safe.

We agreed, received the evidence of the three reports and allowed the appeal.

The Case in Outline

In October 1977, at some time between 9 and 9.30 am, the victim, 20 year-old Carol Wilkinson, was savagely attacked in Woodhall Road, Bradford, as she walked to her place of work, a bakery in Gain Lane. She was partially stripped, sexually assaulted and battered about the head with a large stone. Shortly afterwards, she was found unconscious. On 12 October, the life support machine was switched off. The case for the Crown depended almost entirely upon admissions both orally and in writing said to have been made voluntarily by Steel under police questioning. The Crown contended that only the murderer could have known the details that he mentioned in interview. The Crown also relied on the fact that Steel had given a key ring in the shape of a fish, said to have belonged to the victim and to have been taken from her handbag, to his future wife, Michelle Smith, at about the time of the murder.

Steel lived on the same estate as the victim. At that time he was living there with his partner, Pamela Ward, but he also had a relationship with Michelle Smith and subsequently married her. On 13 October 1977 police called at his home in the course of a systematic enquiry and asked him to complete a questionnaire about his whereabouts on the day of the murder. He said that he had arrived at work, as a gardener, at 8 am, but had left for home again at about 8.20, arriving there at 9.00, together with his workmate Eddie Hannon, and staying until 9.30. He said that Pamela Ward was at home. He was not arrested until some 18 months later. It appears that his mother-in-law had gone to the police with the fish key ring. Over that and the next two days he was interviewed seven times, although the seventh interview was said by the Crown to be only a purely friendly visit to the cells. On the fifth occasion, he made a written statement, confessing to the murder. During the first three interviews, he denied having had anything to do with the murder. He said that he and Eddie Hannon had gone to his home for a pot of tea, arriving there at about 8.45 and returning to work about 9.45. When told that Eddie Hannon was saying that he had stayed at work and not gone home with him, he said that was a lie. He could not remember where he obtained the fish key ring. On the fourth occasion, he began to make certain admissions of presence at the murder scene. On the fifth occasion he made a written statement, confessing to the murder.

Following his statement, he was interviewed a sixth time by DCS Hobson, who was in overall charge of the investigation and sought confirmation of the confession. There were, he told Steel, one or two matters he wanted to clarify. At trial, there was an application to the judge to exclude this and the seventh interview on the grounds that he should have been charged and not interviewed further following his confession, and that what followed was oppressive. The judge was prepared to assume, while stating that he was far from holding that there had been a breach of the Judges’ Rules, but he nevertheless rejected the application. He said that he had no doubt that what happened thereafter was in no way oppressive to the defendant. The judge also ruled, in the course of the application just referred to, that there was no evidence that Steel was at any time refused the services of a solicitor.

That sixth interview ended at 7.40 pm on 25 April 1979. At 8.01 Steel saw a solicitor, Mr David Taylor. He had been at the station, on his evidence, for perhaps half an hour prior to seeing Steel. The latter had had no previous access to a solicitor. He was with Mr Taylor until 8.35 pm. Mr Taylor said that Steel was extremely agitated. On the conclusion of that conference Steel retracted his confession. The solicitor told Superintendent Hobson that there were to be no further interviews.

So far the interviews had been recorded by the police in writing. These were the days before tape recordings. The seventh interview was later that night and was unrecorded. DS Falconer went to Steel’s cell, he said for a “purely friendly” visit, a “social call”. DS Falconer’s evidence was that Steel said to him: “I’m sorry, Mr Falconer, I’m going to have to go back on my statement”, and that he replied: “That’s up to you lad, it’s a free country”. He said that Steel then said: “It was my solicitor you see, he said I was a pillock for making it and that I should have kept my mouth shut…I just want you to know that I’m sorry if I’ve shown you up. It wasn’t my idea.” Steel’s version of this event was that he was taken by DS Falconer to an interview room; the sergeant, red in the face and rubbing his hands, said “You’re a pillock for going back on your statement. If you had stuck to it I could have got you a visit and got you bail”; to which he replied: “I’m not admitting to something I hadn’t done”.

Steel’s case at trial was that he had nothing to do with the murder. That morning he had arrived at work at about 8 am. After a while he had asked his workmate, Eddie Hannon, if he would like to come back to his house for a pot of tea, but Hannon had declined as they had previously got into trouble for skiving on the job. So he had returned alone, arriving at about 8.50. Pamela Ward was there, and they had talked. He left between 9.30 and 9.40 to go back to work. He had worked until 3.30 pm. Subsequently he had read about the attack on Carol Wilkinson in the newspapers.

When interviewed for the purposes of the questionnaire on 13 October 1977 he had not said that Hannon had returned home with him, but that Hannon could confirm that he had gone home for a pot of tea.

As for his interviews, he said that he had asked for a solicitor from the first and repeatedly, but had been refused. He had been shouted at and abused.

As for the fish key ring, he accepted that in his first interview he had said that he could not recall it, but he said that he knew that he had given it to Michelle Smith but could not remember where he had got it from. He had, however, realised by the time of the second interview that he had got it from Pamela Ward’s drawer, where he had seen it before. He had not then mentioned it to the police, because he knew that they would not believe him.

In sum, the police witnesses denied Steel’s allegations of violence, threats of violence, browbeating, fabrication of parts of the confession, and the repeated denial of access to a solicitor. The Crown’s case was that the confessions emanated from Steel, were voluntary and therefore reliable. Steel’s case, however, was that his response was one of despair in the face of pressure which he was unable or too frightened to withstand and that whatever he said or agreed to was not to be regarded as a voluntary, truthful confession. The judge summed up to the jury in those terms.

The Issue For The Jury

The judge said:

"So it is that the matter becomes even simpler, and it is this. In the end do you accept what the Police say he said to them as truth? If it is you may think it amounts to a complete confession and he is guilty. If you do not, if you think that what he is alleged to have said is really, or even may be, if you are in doubt, no more than a produce of a sinister conspiracy, for that is what it amounts to, by those policemen who put words into his mouth that would convict him of murder, if you think that may be true then he must be found not guilty…At the end of the day you may think that is really the sole question, “Am I sure that what he said he said of his own free will and truthfully?"

The judge made two points in that passage. The main one was that the jury’s view about the confession was the critical, and indeed the sole, question on which guilt or innocence should be tested. The subsidiary point was that the defence’s case that the confession was involuntary and unreliable amounted to an allegation of a sinister conspiracy on the part of the police.

These two themes were repeated or reflected elsewhere in the summing up.

As for the subsidiary theme:

It is right to say that if what he says is true or you think may be true, well then there has been a most shocking and cynical conspiracy against him, a dreadful thing. A conspiracy that goes so far so that the Defence case is to saddle him with the crime of the enormity of murder, That is what it comes to.

That presumably reflects the way in which the defence case was put.

Anthony Steel

He was born on 26 May 1956 and was 22 years old at the time of his arrest and 23 at the time of trial. On 7 August 1979 Dr Terence Kay, a consultant forensic psychiatrist, reported on Steel’s mental condition at a time when he was detained in Leeds prison. There was no evidence of any mental disorder and he was fit to plead. The report’s conclusion, however, contains this passage:

Although Steel’s psychological testing indicates his Intelligence Quotient is only 67, I believe this is an underestimate and clinically he is of dull normal intelligence.

An IQ score of 67 in fact falls within the range (below 70) which is now called “extremely low” (Mr Burdett also describes it as the “learning disabled range”) and was formerly called mentally retarded or described as the mental handicap range. Dr Kay does not state what led him to his conclusion that the score was an underestimate, but it may have been the general findings mentioned elsewhere in his report that Steel “spoke easily and gave a good account of himself”.

That Steel was not intelligent, however, appears to have been discussed at trial. The judge mentioned it in his summing up:

"It is said of him, and I say this without, I hope, giving offence, that he is not very bright intellectually. Well, you have seen him and you have heard what has been said about him. I repeat, it is for you to judge it and nobody else."

There was no psychiatric evidence about him at trial, however.

The Judge’s Rulings

We have already referred to the judge’s rulings (a) that the further interviews after the written statement were “in no way oppressive to this defendant” even upon the assumption that there had been a breach of the Judges’ Rules in that respect; (b) that Steel had not been refused the services of a solicitor during the course of the investigations; and (c) that Mr Taylor could not give evidence as to what Steel had said to him when he met him for the first time at 8.01pm on 25 April 1979.

The New Psychiatric Evidence

Ms Tunstall’s first report was written following an assessment of Steel in prison on 18 March 1996 over a period of 4½ hours. His IQ score was 74 (borderline to the lowest range, which begins below 70), his reading age 10 years 7 months, his basic number age 7 years 11 months, his suggestibility score (on the Gudjonsson suggestibility scale form 2, GSS2) was 17 equivalent to the 98 percentile, which is within the abnormal range which begins at the 96 percentile, and his compliance score (on the Gudjonsson compliance questionnaire, GCQ) was 14 equivalent to the 94 percentile, which is just outside the abnormal range. Ms Tunstall said it was difficult to evaluate the significance of the 7 point discrepancy between the IQ score of 74 and that of 67 found by Dr Kay. The GSS2 and GCQ tests were described by Ms Tunstall as follows:

The distinction between suggestibility and compliance as these traits are defined and measured by the Gudjonsson scales is that suggestibility requires personal acceptance by the subject of the information provided or requests made, whereas compliance refers to the tendency of an individual to accede to propositions, requests or instructions put forward by others even though he may privately disagree with what is being put to him.

Ms Tunstall described in her report Steel’s account of the pressures brought on him in interview. She commented:

Mr Steel’s allegations concerning the pressures which were placed upon him during the interviews are not supported by the records of the interviews contained in the witness statements of the police officers. The interviews however were not tape recorded but were contemporaneously hand recorded and in my opinion there is some reason to question whether the records contained in the witness statements constitute a full and comprehensive record of the interviews. Some interviews appear to me to contain very much less material than one would expect given the length of time they occupied. In addition there are very substantial disparities in the quantities of material yielded by different interviews and by different parts of the same interview. I have set out on a separate sheet the calculations upon which I have based this assertion…

Ms Tunstall concluded as follows:

Mr Steel has a Full Scale IQ of 74, is educationally retarded and abnormally suggestible and is thought to have been potentially vulnerable in the context of the police interviews.

Further sources of vulnerability at the time of the interviews were his youth, his lack of previous experience of being questioned under caution and the fact that he had no access to legal advice…

Ms Tunstall also pointed out that measures of interrogative suggestibility were not developed until the mid 1980s and that this information would therefore not have been available at the time of trial. The same appears to be true of the test for compliance. This is a point also made by Lord Bingham of Cornhill CJ giving the judgment of this court in King, where, speaking of 1985/6 he described tests for suggestibility and compliance as a “new and embryonic science”.

Ms Tunstall interviewed and assessed Steel for a second time on 15 May 2001, for a period of some 4 hours. The results were written up in her further report dated 30 May 2001. On this occasion Steel’s full scale IQ score was only 65, his reading age was 10 years 9 months, his suggestibility score was 14, equivalent to the 90 percentile, and his compliance score was 17, equivalent to > 95 percentile. The IQ score fell into the “extremely low” range (below 70), previously described as the mentally retarded or mental handicap range. The suggestibility score on this occasion was just below the abnormal range but was on its borderline. The compliance score on this occasion was in the abnormal range (above the 95 percentile).

In her second report Ms Tunstall discussed the differences in her findings in 1996 and 2001. As for IQ, she concluded that Steel was unlikely to have deteriorated intellectually, as was moreover shown by the IQ sub test scores, and that the deterioration in score was rather due to the different versions of the WAIS test adopted on the two occasions: in 1996 the test was WAIS-R and in 2001 it was WAIS III. The previous test had become outdated and was regarded as having overestimated IQ. As for suggestibility and compliance, whereas the 1996 tests had shown Steel to be abnormally suggestible and borderline to abnormal on compliance, the 2001 tests now reversed those findings which thus became borderline to abnormal on suggestibility and abnormally compliant. Ms Tunstall discussed these findings in these terms:

The present scores therefore provide no evidence of abnormal suggestibility but do provide evidence of abnormal compliance. Very small changes in the actual scores have brought this about and in my opinion it would be consistent with the test evidence to perceive Mr Steel as functioning near the borderline in the case of both suggestibility and compliance.

In my report dated 11.4.1996 I pointed out that measures of interrogative suggestibility had not been developed at the time of Mr Steel’s trial and the same is true of measures of compliance.

The results obtained in the present assessment have not caused me to change the opinions expressed in my report dated 11.4.1996. It remains my view that Mr Steel was potentially vulnerable in the context of the police interviews by reason of his level of intelligence, now estimated to fall within the mental handicap range, and his levels of suggestibility to which I would now add compliance. Other potential sources of vulnerability listed in my earlier report which I repeat here were his youth at the time, his lack of any previous experience of being interviewed under caution and his lack of any access to legal advice until after the police interviews had been concluded.

Ms Tunstall went on to comment on DCS Hobson’s evidence about the sixth interview concerning Steel displaying no signs of stress or distress and as seeming relieved. She pointed out that the relief of bringing a highly stressful period of interrogation to a close could result in a demeanour which was consistent for a false as well as a true confession.

On 14 July 2001 Steel was interviewed and assessed by Mr Burdett in turn. He had before him Ms Tunstall’s two reports. His full scale IQ score for Steel (using WASI) was 64, very close to Ms Tunstall’s second report finding of 65. The suggestibility score placed Steel in the 99 percentile (abnormal), and the compliance score placed Steel in the 88 percentile (at the upper, ie more compliant, end of the average range). Mr Burdett expressed the following opinions. As to IQ, he agreed with Ms Tunstall that the 1996 WAIS-R test would throw up slightly higher scores. He appears to have considered it significant that the 1979 and 2001 scores were almost identical and stated that Dr Kay’s opinion on the 1979 score should be discounted as being outside the area of his expertise. As to suggestibility, he commented on the statistically significant difference between the scores found by Ms Tunstall in 2001 and by himself:

I feel that this difference in score may well be associated with examiner variables, and it seems feasible that Mr Steel might be more likely to give way to a male examiner. This may have implications for Mr Steel’s behaviour when he was interviewed by the Police, if his interrogators were mainly men.

Overall, Mr Steel’s scores show a strong tendency towards suggestibility and to agreeing with the interrogator when put under interrogative pressure. Any confession must be considered to be of dubious validity.

As for compliance, Mr Burdett referred to the wide and significant variation in the three scores recorded in the three reports, but commented that “all the results suggest a strong tendency towards obedience to authority”. He went on to point out that Gudjonnson had himself warned that the test might be unsuitable for subjects whose IQ was below 70.

Mr Burdett’s final conclusion was as follows:

Mr Steel is functioning within the learning disabled range. He is also highly suggestible to interrogative questioning and any confession obtained from Mr Steel would be unsafe. If Mr Steel were interviewed by the Police at the present time, he would need to have a responsible adult present at all times during the interview.

We have to consider whether to receive this new evidence. Similar evidence was received by this court in King (see below). Its reception has not been opposed by the Crown. We have no hesitation in finding that it should be received as meeting the requirements of subsections (a), (b), (c) and (d) of section 23 of the Criminal Appeal Act 1968.

Discussion.

Mr Mansfield’s primary submission was that the new evidence made Steel’s conviction unsafe, and that was irrespective of any breach of the Judges’ Rules or of the absence of any modern safeguards thought necessary for the protection of a suspect and the avoidance of a miscarriage of justice. His alternative submission was that the conviction was in any event unsafe once such breaches or the absence of such safeguards were taken into consideration.

In support of his primary submission, Mr Mansfield emphasised that the new evidence showed that Steel, unknown to the jury or any other participant at his trial, was a far more vulnerable person in the context of his interviews than had been or could have been appreciated at the time and that, in a case which depended essentially on his confession, his conviction must therefore be regarded as unsafe. For the Crown, Mr Kelsey-Fry felt unable to proffer an argument to the contrary.

We agree. Although, as in King, the evidence of Steel’s abnormally low IQ could have been established at trial, it is the combination of his borderline abnormality in terms of suggestibility and compliance and of his unforeseen abnormally low IQ which rendered him particularly vulnerable to interrogation; and this would be so irrespective of Steel’s allegations concerning violence and the threats of violence, inducements, and the refusal of access to a solicitor. It is not possible to regard the conviction as safe when the essential issue, indeed the sole issue on which the jury were asked to judge Steel’s case was whether his confession was voluntary and true or not.

In so judging him, the jury would have to rely on Steel’s own evidence from the witness box without the advantage of the new expert evidence as to his vulnerability when alone in the police station during lengthy interviews. If in those circumstances the jury might have found it difficult to believe how Steel could confess to a crime he did not commit, they would not have found it any easier to accept, or to be rendered doubtful about, his more specific allegations as to how he was treated during his interrogation. If, however, they had had the advantage of hearing the new evidence, it cannot be postulated that they would not have looked at the whole of Steel’s evidence in a new light.

The judge, whose summing up was a model of fairness, was at a similar disadvantage. So were counsel at trial. Without appreciating how potentially vulnerable Steel was, any of them was entitled to present the conflict of evidence between the police witnesses and Steel in stark terms, reflected in the judge’s summing up, between on the one side an entirely straightforward interview process and on the other side a sinister conspiracy. Presented, however, with the new evidence, it becomes apparent that a third alternative becomes possible, which is that, without any abuse of the process, a highly vulnerable suspect was not recognised for what he was.

It is precisely because of the dangers of such vulnerability that certain safeguards have been built into the process. Of course, it has never been permissible to use violence, threats or inducements to extract a confession. In other respects, however, the rules have changed to reflect an increasing appreciation of what is necessary for safeguards against the risk of a miscarriage of justice. At the time of the interviews and trial in this case, the test for the admissibility and relevance of a confession was that it was voluntary, defined in the Judges’ Rules as not being obtained “by fear of prejudice or hope of advantage…or by oppression”, see R v. Prager (1972). Nowadays a new test found in section 76(2)(b) of PACE is that of reliability. As the note in Archbold, 2003 points out, a confession might be inadmissible without any impropriety. At the time of the interviews in this case, “every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor”: at that time, however, it appears to have been the view that there would be no breach unless the suspect had requested the services of a solicitor, and even in case of breach it would seem that there was uncertainty as to its importance: see Archbold, 40th ed, 1979, at para 1390.

Nowadays, however, the right of access to legal advice and to being apprised of that right is dealt with in detail in PACE and its Codes and its importance underlined (R v. Samuel 1988). Whether Steel had in fact asked for a solicitor was of course a point in issue in this case: but it is not something on which the new evidence bears; and it is not possible to say that there had been a breach, although Mr Mansfield urged us to infer that there had, for instance from the speed with which Mr Taylor appeared once the interrogation had been concluded with the sixth interview. 

In this connection, however, the fact that Steel was what used to be called mentally retarded or mentally handicapped is of particular importance. Its importance was recognised under the Judges’ Rules:

If it appears to a police officer that a person  whom he intends to interview has a mental handicap which raises a doubt as to whether the person can understand the questions put to him, or which makes the person likely to be especially open to suggestion, the officer should take particular care in putting questions and accepting the reliability of answers. As far as practicable, and where recognised as such by the police, a mentally handicapped adult  should be interviewed only in the presence of a parent or other person in whose care, custody or control he is, or of some person who is not a police officer.

Nowadays, there is a straightforward prohibition in the Codes on the interview of a mentally handicapped person in the absence of an appropriate adult

In our judgment, however, the need to show a breach of the rules then in force, was not a condition precedent to the success of that appeal, nor to the success of this. Rather, the background of the rules then in force and, as Lord Bingham put it, of “circumstances which denied the defendant important safeguards later thought necessary to avoid the risk of a miscarriage of justice” is what gives to the new evidence its power to affect the safety of the conviction in question.

Conclusion

In conclusion, we regard Steel’s conviction as unsafe and therefore allowed his appeal. Although the facts and legal circumstances of this case are not identical with those of King, we think that the essence of this court’s reasoning and approach in that case guides our conclusion in this.

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