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R v Keith Twitchell 1999 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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In The Court Of Appeal - Tuesday 26th October 1999

1994 - Treadaway v Chief Const of Police for the West Midlands - Civil action against police for assault - plastic bagging

1996 - Tredaway - police fabricated evidence - bagging the suspect - criminal conviction overturned

This case was referred to the Court of Appeal by the Criminal Cases Review Commission. It is probably one of the most important cases which the CCRC and the Court of Appeal have dealt with. As you will see from the opening comments of the judge, it deals with a case arising from serious and systematic corruption within the British police. As you can see, the conviction was overturned because the credibility of the prosecution witnesses was brought into question. Whilst the witnesses in this case happened to be police officers, I would suggest that the same result would come about if unreliability had been established on the part of forensic scientists, forensic pathologists or other significant prosecution witnesses.

Edited version of judgment follows.

The Vice President 

There is before the Court yet another appeal arising from the lamentable history of the now disbanded West Midlands Serious Crime Squad. During the 1980's a significant number of police officers in that squad (some of whom rose to very senior rank) behaved outrageously and, in particular, extracted confessions by grossly improper means, amounting in some cases to torture.  During the 1990's, it has been the melancholy task of this Court to examine the safety of many convictions recorded during that period, and approximately 30 have been quashed.  It is to be noted that the task of this Court is not to proclaim guilt or innocence. Our duty is to assess the safety or otherwise of the challenged conviction and to allow an appeal if we think the conviction is unsafe.

Twitchell (1982) - convicted by majority of manslaughter and robbery and sentenced to 20 years manslaughter and 15 years for robbery. He was released in February 1993.

February 1983 - refused leave to appeal against conviction and sentence.

September 1983 – Twitchell wrote a letter of complaint about the police conduct while investigating the case against him. Detective Chief Superintendent Rimmer conducted an investigation and submitted a report which concluded that there was no evidence to support the allegations.

December 1983 - the Full Court refused leave to appeal against the conviction and sentence by Twitchell and his 4 co-accused. 

January 1991 - representations made to the Home Office.

August 1994 - investigation reopened by the Home Office. In April 1994 a civil claim for damages against the police in another case (Treadaway) was successful. Treadaway's convictions were quashed November 1996.

April 1997 – Twitchell’s case was transferred to the Criminal Cases Review Commission and referred to this court in January 1998.

This appeal is about the allegation made by Twitchell that he had been tortured into making a confession by having a plastic bag placed over his head by the police. Apparently, some of the police involved in Twitchell’s case have since been discredited in other cases where convictions were quashed. Treadaway made a similar allegation about the use of a plastic bag two years or so after Twitchell complained of it.

In November 1980, about 10am, a team of at least six was involved in a robbery from a security guard outside a factory in the West Midlands. The security van had to stop opposite double glass doors leading into the factory because access to the loading bay was blocked by a van. It had been stolen by the robbers the previous day. The guard (George Smith) crossed the pavement with a bag containing £11,000 in cash. He then found the double glass doors blocked with a metal bar across them. He removed it and threw it to the ground. Before he could enter the building, he was shot at point-blank range by a sawn-off shotgun. He died almost immediately.

A car which had been stolen the week before was parked immediately behind the security van just before the shooting. After the shooting it was driven off up the street by a man (Behan) who was never arrested. It contained 4 passengers.

Two plain clothes police (Adams and Turner) were on patrol in the area in an unmarked car not equipped with a radio. They saw the car and noticed its speed and that it had 5 occupants. One of the officers took its number. Both officers claimed to identify Twitchell as a passenger in the back seat. When the car stopped in the car park of a dog track, the police said that they saw a man leave the car and transfer to another car. They said he (Hammond) was wearing a blue boiler suit and carrying a hold-all.

The police followed the new car and there was a chase which ended with it crashing while trying to leave the M6 motorway at Spaghetti Junction.  Two men left the car and ran off. The driver turned out to be Steele, and the passenger was Hammond. Hammond’s hold-all was found in the car. It contained the stolen money and three guns (2 of which were loaded); a pickaxe handle; masks, wigs, nylon stockings, 2 anoraks and woollen gloves.

After being arrested Hammond and Steele made admissions and written statements.

The first car was found abandoned with its engine still running shortly after, not far from where the police had first seen it. Shortly after that Twitchell was arrested and the police impounded a car he had with him. He was taken to the police station. When police officers Adams and Turner saw him in the corridor they identified him as having been a passenger in the first car. Then police went to the flat where Twitchell was living with his girlfriend. They found a cloth cap, a pair of gloves and a rucksack. Later, there was evidence that a single fibre matching the carpet of the stolen van was found on each of those items. Tools belonging to the owner of the first car were found in the boot of Twitchell’s car and toys and a metal tool box belonging to him were found in Twitchell’s lock-up garage.

Most damaging to Twitchell was the content of his interviews and his admissions, orally and in writing.

The prosecution said that Twitchell’s story was that he had been at home all morning on the day of the robbery. When shown statements by Steele and Hammond, he was said to have said that things "looked black" for all of them. According to the police, he went on to make admissions, including the written statement, which said he had been at the robbery with a gun and a mask, but he had not shot the guard; he identified someone who had.

Shortly after he had repeated that the shooting had had nothing do with him but that the statements made by Steele and Hammond were about right. He made a written statement, in which he said that he had had a sawn-off shotgun and, as he was getting out of the first car, there had been the fatal shot.  He said he was in the front, not the rear, of the car.

Twitchell gave evidence at his trial. He claimed to have an alibi, supported by his girlfriend and her young son. He said he had been at a party the night before the robbery and didn’t get home until 2am. On the day of the robbery, he had not got up until 10.30am, his girlfriend having left for work at 8.30am. He went out at about 11.45am for cigarettes and Lucozade. That was when he was arrested. He said that he had never seen the toolbox, and that the tools, toys and fibres had been planted by the police.

He said the notes about the initial interview had been fabricated. He had made no admissions. He said that the police had said that they wanted a statement.  Twitchell said he was naked, his clothes having been removed for forensic examination. The police had screamed at him and had threatened him.  He had repeated that he was not involved. He said that in the evening of 14 November, 8 police officers had handcuffed him to a chair and placed a plastic bag over his head while he was naked. He very quickly signed the statement. The next day he signed another statement. He said he was like a zombie - totally numbed by what had happened to him. In effect, he had given up and just signed whatever he was asked to sign. Only after he had signed things was allowed to see a solicitor.

The admissions Twitchell was said to have made also included admissions in relation to a robbery in Sheffield. He was acquitted of that at a separate trial.

A couple of days later, police (Perkins and Swinnerton) had given Twitchell a beer. Perkins had said, "That bag's great. It doesn't leave any marks. We thought of using it on Steele, but it would have killed him."

Twitchell says that, in the light of the various findings against "the vast majority of police officers” involved in his case, the conviction is unsafe. He says the misconduct in other cases, demonstrates a system of corrupt and dishonest conduct by officers of the West Midlands Crime Squad such as to render the convictions unsafe.

The test in this appeal was stated by the Court in Treadaway (November 1996):

"On any view, the reliability of the police evidence formed a major plank in the prosecution case. If it was unreliable, a major question mark must in consequence, in our judgment, be raised over the safety of the convictions."

"There must arise, at the very lowest, … a distinct possibility that the jury would have reached different verdicts, had the police evidence been discredited before them."

Another factor was stated in the case of Campbell:

We are in no position to make findings of fact about what happened. It is not for us to hold that the appellant was or was not involved in the murder. Nor can we determine whether the police officers misconducted themselves as was claimed. That is not our function.

Our sole function is to form a judgment whether, in the light of the material now known to us but not known to the judge, the jury or counsel at the time of the trial, we think the verdict unsafe.

The case depended crucially on a direct choice between the credibility of the police officers - and the accused. In making their choice the jury did not know of matters which threw severe doubt on the honesty and professional integrity of those officers.  If those issues had been put to them, the officers they would have been driven to make admissions which should have caused the jury to entertain doubts. If the judge had allowed the case to go to the jury at all he would have been bound to warn in strong terms of the danger of relying on the evidence of officers whose veracity had been so severely questioned.  

Twitchell’s complaint about the "bagging" was made when he was first allowed to see his  solicitor. That complaint was made before any similar complaint was made by Treadaway.

Treadaway said he had been handcuffed and a plastic bag had been placed over his head in which he bit a hole, so other bags were used. Following that suffocation, he had signed a confession. 

The judge awarded damages to Treadaway as a result of the behaviour towards him of 5 West Midlands Serious Crime Squad Officers. He said that one of those officers (Brown) who became a Chief Superintendent, was "a most unsatisfactory witness". He said there were 3 issues about which Brown had lied in the course of those proceedings.

The judge found that Treadaway had been assaulted by 5 officers, including Brown of whom he said “his stock in trade was ambiguity and he simply did not tell the truth.” 2 officers had gone into Treadaway’s cell and handcuffed him behind his back, before placing the plastic bags over his head. This Court on Treadaway's appeal referred to:

"...other material before the court, into the detail of which it is unnecessary to go, to show that DS Hornby was deeply involved in the reprehensible activities of the West Midlands Serious Crime Squad prior to its abandonment."

Police officers Perkins, Brown and Hornby and some of the other officers in Twitchell, were also involved in a number of other cases.

Twitchell’s barrister drew attention to the significance of the acquittal of Twitchell in relation to the Sheffield robbery, given that the evidence against him depended on the same interviews as were involved in this case.

He also challenged the identification evidence of Adams and Turner, particularly the fibre evidence and the evidence of the toys and the toolbox.

By comparison to the evidence of the bagging, those matters are not so important.

We can take that view because the prosecutor does not seek to uphold the conviction by separating the evidence of identification from the matter of the alleged admissions.  That concession was correct, in view of the way in which the trial judge invited the jury to link the evidence of identification with the admissions if they were thought to support each other.

The prosecutor has not sought to suggest that the fibre evidence or the finding of the tools or toys were capable of proving Twitchell’s presence at the robbery without the admissions.

The prosecutor said that the court must consider the effect of the new evidence in relation to the officers and the bagging, and if that evidence had been available at the trial, how it could have been properly used.  He also accepts that the court can also consider material which was not in existence at the time of the trial. The principles are

1. That the evidence must be relevant.
2. That cross-examination as to a relevant criminal or disciplinary conviction is permissible.
3. Where an acquittal in one case indicates that the jury must have entirely rejected the evidence of the officer – that officer can be cross-examined about that in a subsequent case.
4. It is not permissible to cross-examine an officer about complaints  made against him which did not result in conviction - or to cross-examine one officer about discreditable conduct by other officers. 

It is permissible to cross-examine an officer about any relevant finding of fact by a court, whether in civil proceedings or by the Court of Criminal Appeal.

It was argued that the mere fact that a complaint or allegation has been made, or that a person who is a witness has been charged with some offence or disciplinary misbehaviour, is not of itself a sufficient basis for cross-examination as to credit. There has to be a balance between protecting witnesses against bandwagon complaints or smearing them by association – and allowing appellants to make use of cases where an acquittal demonstrates rejection and disbelief of the evidence.

The prosecutor divided the cases during the last 10 years into three categories. 

Category 1 - where an appeal was allowed on the basis of a general feeling of unease without evidence being called before the appeal court and without any specific concession by the prosecution.

Category 2 – where the appeal court makes a specific finding of fact, after hearing evidence, or where concessions are made by the prosecution.

Category 3 - More recently, where a category 2 case has been relied on as demonstrating the unreliability of a particular witness.

In this case then it is accepted that the findings in Treadaway's appeal can be relied upon in this case. The fact that Treadaway was wrongly denied access to a solicitor - that he was handcuffed to a chair with a bag over his head, whereby he was forced to sign a false confession; and the fact that officer Brown lied about those matters on oath in the criminal trial and in the civil proceedings.  That Mr Brown failed to attend at Treadaway's appeal. The disciplinary conviction of Brown for neglect of duty can also be relied upon - relating to Brown's rewriting a number of pages of contemporaneous note.  Brown was convicted of the disciplinary offence of falsehood, in knowingly, or through neglect, making a false, misleading or inaccurate written statement or entry in a record by certifying that a payment had been made to an informant.  In relation to that, Brown was fined.

Detective Chief Inspector Taylor was found guilty of 2 disciplinary offences:
1. neglect of duty - inadequate recording of payments to an informant;
2. falsehood.

Detective Constable Perkins had created a false set of interview notes with the intention of using them to persuade a suspect to make admissions. He also admitted he had wrongfully arrested a person, refused him access to a solicitor,  assaulted him, forced him to sign blank pages of interview notes and fabricated admissions by him.

Constable Quin had put forward notes as contemporaneous notes when they could not have been.

Detective Constable McLelland - no reliance could be placed on evidence given by him and others in relation to the obtaining of confessions in motorcars.  The prosecutor fully accepts the importance and desirability of the prosecution being bound by previous concessions made in other cases. 

However, we see no reason why in principle the prosecution, like the defence, should not be permitted, in the light of subsequent developments, to withdraw concessions which may properly have been made on the basis of information available when they were made. 

It is unnecessary to determine whether the concessions made in other cases were properly made and whether this Court should rely upon them The "bagging" incident is of such crucial significance in this appeal that we do not have to look at any of the other concessions in more detail.

The final and fundamental concession made by the prosecution is as follows:

"It would be facile to suggest that cross-examination of Brown, Taylor, Perkins and Quin with the material to which reference has been made, would have been anything less than potentially devastating.

Indeed, the cross-examination of Brown alone, on the basis of the material to which we have referred, would have been potentially devastating.

We make no findings in this appeal about individual officers.  We rely on findings made in relation to the Treadaway case, and the other material, which gave rise to findings or admissions on which reliance can properly be placed for the purposes of this appeal.

On that basis, highly significant and potentially devastating  cross-examination could plainly have been directed to Brown, Taylor, Perkins and Quin, in the light of what is now known about those officers.  The fact that such devastating cross-examination could have been so directed is, as it seems to us, on a review of all the material before this Court and in the light of the concessions properly made by the prosecution, an ample basis on which to say that this appellant's convictions are unsafe. 

Accordingly his appeal is allowed.

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