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Judith Ward v The Queen UK 1992 (The M62 Bombings)

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 4 June 1992

On 10 September 1973 a bomb went off at Euston Railway Station in London. A dozen people were injured but nobody was killed.

On 4 February 1974 12 people were killed when a bomb went off on a coach on the M62 carrying soldiers and their families from Manchester to Catterick Camp in Yorkshire.

On 12 February 1974 a bomb also went off at the National Defence College in Buckinghamshire.

On 14 February 1974 Ward was taken into custody, questioned and swabs were taken of her hands to determine if she had been in contact with explosives particularly nitroglycerine.

In October 1974 Ward was arrested and charged with the causing explosions and murder. The prosecution was based upon confessions made to police officers after her arrest, and expert scientific evidence that traces of nitroglycerine [NG] were found on her. She was convicted and given 30 years for the explosion convictions and life imprisonment for the murder convictions. In September 1991 the Home Secretary referred her case to the Court of Appeal. Ward claimed that the prosecution had failed to disclose fresh evidence which cast doubt on the scientific validity of the evidence and fresh evidence that she was suffering from a personality disorder.

In the late 1960s, Ward had been a horse riding instructor in Wilshire in England and in Dundalk in Ireland. In 1971 she enlisted in the Women’s Royal Army Corps and spent some time at Catterick Camp. After two months she went absent without leave and returned to Dundalk. Over the next few years she moved backwards and forwards between England and Ireland, and on a number of occasions she came to the attention of the police. She stated that on some occasions she had done things which might have assisted the IRA, such as providing a sketch of army barracks lay out, or the lay out of Manchester airport. She claimed to have married a member of the Provisional IRA.

At her trial, Ward claimed that most of the things she had told the police in her various statements had just been made up. She said that she had said many of the things because she was tired and mixed-up at the time. Whilst she accepted that she had in fact said many of the things attributed to her, she maintained that the statements were untrue and that she had not been involved in the incidents for which she had been charged.

Scientific Evidence

This was a major feature of the trial. There were 4 scientific witnesses for the prosecution and 2 for the defence. It was said that swabs taken from Ward had shown traces of NG which were variously described as either “faint” or “definitely positive”. It was said that there would not have been any real risk of accidental contamination. Because some of the traces were said to have been found under Wards fingernails, it was said that this meant that she had been involved in making the bomb. 

The reference by the Home Secretary made it clear that there was concern about the validity of the scientific evidence which had been given at the trial. Investigations which had led to the appeal in R v McIlkenny [1992] – the Birmingham Six case – cast serious doubt upon the opinions expressed by Dr Skuse at the trial based upon his use of the Griess test similar to that which he had used in Ward’s case. Also, scientific investigation carried out in connection with the Inquiry by Sir John May into the Maguire family case – their convictions were quashed in R v Maguire 1992 – had shown that other substances may give results similar to that of NG.

As is the case with every appeal, once the case has been referred to this court, the defendant can then raise any relevant issue. The main grounds of appeal are:

Prosecution failure to disclose to the defence evidence which it had a duty to disclose and which relates to the following 2 grounds.
Fresh evidence which casts doubt about the validity of scientific evidence given on behalf of the Crown at the trial.
Fresh evidence that Ward was suffering from a personality disorder such that none of the admissions which she made could be relied upon as being true.

In the interests of justice we decided to hear fresh evidence from 5 witnesses. They included the solicitor at the trial who gave evidence that certain reports which are now available were not available to him at the trial. We also heard from witnesses for the Crown and some police officers which related to their practices at the time of the trial. We also had a great deal of documentary evidence which was not disclosed at the time of the trial.

After hearing the evidence that the accused was suffering from a personality disorder such that no reliance could be placed on her admissions or confessions we concluded that none of them could be relied upon as evidence of the truth of what had occurred. On this ground alone the conviction was unsafe and unsatisfactory.

It is now settled law that the failure of the prosecution to disclose to the defence evidence which ought to have been disclosed is ‘an irregularity in the course of the trial’. Why there was non-disclosure is an irrelevant question. The irregularity is in the course of the trial because the duty of disclosure is a continuing one. If the irregularity is material then for this reason alone the appeal must be allowed unless the proviso applies. R v Maguire said  that the failure to disclose is a ‘procedural irregularity’ and because that which was not disclosed ought to have been disclosed we would expect it to satisfy the adjective of ‘material’. We agree. ‘Material’ means something less than crucial. It was said that the non disclosures here were relatively insignificant in the context of the case when viewed as a whole. The scope of that submission is limited to matters of which it can be said that they were of no real significance. The possibility that this view will be taken of any piece of disclosable evidence should be wholly excluded from the minds of the prosecution when considering the question of disclosure. Non disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed piece of evidence might have shifted the balance or opened up a new line of defence. That does not arise here as the non disclosures were a material irregularity.

In this case, ‘the prosecution’ includes three police forces, the staff of the DPP’s office, the psychiatrists who prepared reports and the forensic scientists who gave evidence for the prosecution at the trial. In Maguire, the AG guidelines applied there were whether the undisclosed material had some bearing on the offences charged and the surrounding circumstances of the case. Whether the test for non-disclosure should be the here and now test, or what was applicable in 1974 is really not relevant, because even by standards of 1974 there were clearly failures to disclose by each of the groups to which we have referred.

The test put forward by Lord Denning was that laid down in Dallison v Caffrey 1964 was that the duty of prosecuting counsel ‘as he always understood it’ was that if one knows of a credible witness who can speak to material facts which tend to show the prisoner to be innocent, then that witness must either be called or their statement made available to the defence. The practice should be to allow the defence to see the statements unless there is good reason for not doing so, especially where delay might have adversely affected the recall of the witness. Lord Denning went on to say that it would be highly reprehensible to conceal from the court the evidence which such a witness could give. If prosecuting counsel knows of a witness, not accepted as credible, they should tell the defence about that person so that they can judge whether to call the witness for themselves.

That position is an aspect of the defendant’s elementary common law right to a fair trial which depends upon the observance by the prosecution, no less than the court, of the rules of natural justice. No authority is needed for that proposition. It is illustrated by the decision in R v Leyland 1979. In R v Hennessey 1978, it was said that those who prepare and conduct prosecutions owe a duty to the court to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence and if this duty is neglected, we can expect the appropriate disciplinary bodies to take action and that the judges will make sure that the Crown gets no advantage from neglect of duty on the part of the prosecution.

That statement reflects the position in 1974 as well as today. The expression ‘all relevant evidence’ is not limited to that which will advance the accused’s case. It is of help for the accused to see all of evidence which the prosecution have gathered and from which they have made their selection. The practice of disclosing unused material has been much more clearly recognised recently by prosecutors. The Code of Conduct of the Bar makes this clear.

Non disclosures

The West Yorkshire police were the lead force. They took some 1,700 statements but only forwarded 225 of them to the DPP. By contrast, all of the 882 statements from Thames Valley police and the 148 from the Metropolitan Police were sent to the DPP. It is clear that the course adopted by the Yorkshire police was wholly wrong and led to the suppression of information which the accused was entitled to. The statements might not have been relevant to the offences for which she was charged. But they did go to her desire for attention seeking and making things up and the withdrawal of untrue confessions. The prosecution has very properly conceded that the failure to disclose certain statements did constitute a material irregularity. These include a number of the accused’s own statements where she was said to have admitted to a great many acts of wrongdoing. It also included medical reports on her psychiatric condition. We cannot assume in the absence of specific information to that effect, that the general course of conduct at that time was followed. The failure to disclose them was a material irregularity.

The scientific evidence

The prosecution’s scientific evidence was to lend cogent and scientific support to the confessions. The jury would have found the combination compelling proof of guilt. The court was told that there were 4 occasions when NG was found on Ward or on her belongings. Swabs were taken from her hands at Euston station which showed faint traces of NG. Her duffle bag and raffia bag which she had put on a train were said to have given a positive result for NG. Swabs from Ward’s hands after she was taken into custody were said to have revealed a positive result. Swabs were also taken from a caravan used by Ward which were said to implicate her in the M62 coach explosion on the same day.

Scientific testing

NG is a pale yellow, heavy oily substance which explodes with great force when subjected to a shock or detonation. The addition of DNT (dinitrotoluene) gives it greater explosive force. This is the material used by the IRA in the bombing campaign during 1973-4. By 1973 the Griess test, of which there were several variants, was used to test for its presence. The test was used to detect nitrate, which is not present as such in NG. Caustic soda is therefore used to convert NG to nitrite. Adding the Griess reagent to material containing nitrite results in the appearance of a pink colour within 10 seconds. It was regarded as a preliminary test which if positive would lead to the more sensitive thin layer chromatography (TLC) test. This is a test whereby a mixture of substances in solution can be separated from each other by applying them to one side of a flat plate coated with absorbent inert material such a silica or alumina. The insertion of the edge of the plate where the mixture has been spotted into a solvent causes the components of the mixture to migrate up the plate and the distance travelled is governed by the chemical nature of the compound and the solvent. Different compounds will travel different distances in relation to the solvent front. The test is performed with a sample and a control sample. The distance is measured relative to the final distance travelled by the eluent (the solvent). The ratio of the distance is known as the Rf value for the compound. If the suspect sample travels the same distance as the control sample, and it turns pink when a Griess reagent is applied, NG has been identified.

In this case, samples were sent to the Home Office Research Establishment at Aldermaston for gas chromatography / mass spectrometry (GCMS) to be done. The samples were rejected as unacceptable, and no GCMS testing took place.

Disclosure of scientific results

It is alleged that the government forensic scientists (Higgs, Elliot and Berryman) acting on their own concealed from the prosecution and the court matters material to the issues in the case. Elliot stated in respect of the Euston samples that all gave positive results for NG and DNT. This was a misleading statement. It failed to distinguish between the test results for each of the 3 tested. It was an overstatement to describe a ‘faint trace’ as a positive result. If the true results had been disclosed Ward would have contested the finding that NG was present or that it may have resulted from contamination. It was wrong for the prosecution to serve such an uninformative witness statement on behalf of a forensic scientist. It was calculated to make it more difficult for the defence experts to probe the matter.

When Higgs referred to positive results in tests from the caravan and that they indicated explosive material had been present, it was an overstatement of the position. The chemical analysis sheets referred to faint or very faint traces. After hearing Mr Higgs explanations we find that he did not wish to reveal anything which might have encouraged investigation by the defence. He did not want to disclose the faintness of the traces. Most of this relates to the failure of disclosure in the pre-trial process.

At trial Higgs Elliot and Berryman had knowledge of relevant factors which they suppressed. In 1973 Elliot carried out control tests on black shoe polishes in order to determine if dyes in them could interfere with the detection of NG and DNT in TLC. The report disclosed that the dye solvent yellow 56 (SY56) corresponds with NG in both Rf value and final spot colour. As the report said, it is encountered in normal life and it is not an explosive. Given that we were dealing with ‘faint’ test results, the importance of this issue was obvious long before the trial took place. Indeed in 1974 Higgs advised that there were no commodities which could on a TLC test mimic the results for NG. As Elliot supervised the boot polish tests in 1973, he must also have known that the advice was wrong. It is inconceivable that Higgs did not know of these experimental data. Although Berryman denied knowledge of the boot polish tests, we find that he was aware of the experimental data.

When experiments were done to determine if contamination could occur the results were reported as negative. It was simply not true. We reject Higgs account as being a deliberate falsehood. Elliot was also a party to the concealment of the results which were unfavourable to the prosecution case. Also Berryman’s evidence was untrue. The consequence is that in a criminal trial involving grave charges 3 senior government forensic scientists deliberately withheld experimental data on the ground that it might damage the prosecution case. No doubt they judged that the results of the tests would remain forever confidential. They were wrong. However the records were only disclosed 17 years after Ward was convicted.

Material non-disclosure

An incident of the right to a fair trial is a right to timely disclosure by the prosecution of all material matters which affect the scientific case relied on by the prosecution. This duty exists whether or not a specific request for disclosure of details of scientific evidence is made by the defence. The duty is continuous. It applies in the pre-trial period and throughout the trial. These propositions were established prior to 1974 as evidenced in R v Leyland 1979 which merely served to reinforce the generality of the duty of fair disclosure. In Ward’s case the disclosure of scientific evidence was woefully deficient. 3 Senior scientists took the law into their own hands and concealed from the prosecution, defence and the court matters which might have changed the results of the trials. The catalogue of lamentable omissions included failures to reveal actual test results, discrepant Rf values, suppression of the boot polish experimental data, misrepresentation of the firing cell test results and the concealment of subsequent positive results from them, economical witness statements calculated to obstruct inquiry by the defence and oral evidence at trial where senior scientists knowingly placed a false and distorted scientific picture before the jury. It is pointless to try to add up the number of failures which amounted to material irregularities. On the scientific case deployed against her Ward did not have a fair trial. Our law does not tolerate a conviction to be secured by ambush. The application of the proviso would have been out of the question.

For the future it is important to consider why the scientists acted as they did. For lawyers, judges and jurors, a scientist is the image of the person in a white coat working in the laboratory approaching the task with a cold neutrality and dedicated only to the pursuit of scientific truth. It is a sombre thought that the reality is sometimes different. Forensic scientists may become partisan. The very fact that the police seek their assistance may create a relationship between the police and the forensic scientists. The adversarial character of the proceedings tend to promote this process. Forensic scientists employed by the government may become to see their function as helping the police. They may lose their objectivity. That is what must have happened in this case.

Higgs said that the policy was to answer questions, not to proffer information. You gave them assistance to investigate what they want, but you did not necessarily say what you yourself had found out. We were careful about what we said. At a conference after the Maguire case in 1976, Higgs said that they were not able to distinguish between NG and PETN using toluene as eluent. However, he said this point never really cropped up during the trial and we were all very careful about what not to say in this respect. So there was an understanding between the scientists to say nothing about their doubts at the trial. So, they concealed the cell test results. The disinclination of the forensic scientists to assist the defence was also a feature of Sir John May’s Interim Report on the Maguire case (para 12.1-4)

We learn from this miscarriage of justice that the law cannot guard against the failings of all of those who play a part in the criminal justice system. That sombre realism does not relieve the judges from persevering in the task to ensure that the law and practice of the trial reduces the risk of conviction of the innocent to an absolute minimum. The cause of the injustice here stems from the fact that the forensic scientists regarded their task as being to help the police. They became partisan. It is the clear duty of govt scientists to assist in a neutral and impartial way in criminal investigations. They must act in the cause of justice. The surest way of preventing the misuse of scientific evidence is by ensuring that there is a proper understanding of the nature and scope of the prosecution’s duty of disclosure. The prosecution’s duty exists irrespective of any request by the defence. It is not limited to the documentation on which the opinion or findings of an expert is based. It extends to anything which might arguably assist the defence. It is a positive duty which obliges the prosecution to make full and proper inquiries from forensic scientists in order to discover whether there is discoverable material. Given the undoubted inequality between prosecution and defence in access to forensic scientists we regard it as of paramount importance that the duty of disclosure should be appreciated by those who prosecute and defend in criminal cases. If difficulties arise in a particular case, the court must be the final judge.

Dr Skuse’s evidence

There is an impressive body of evidence before us to show that Dr Skuse’s tests, despite his confident assertions to the contrary, were of no value in establishing contact between Ward and explosives in 1974. His Griesse test result was no more than an initial step and was not evidence of the existence of NG. He relied on the one TLC test spot despite the fact it was not pink. This conclusion was wrong. If the trial judge had known what we know, he would have excluded Skuse’s evidence as valueless. Dr Skuse’s conclusion was wrong and demonstrably wrong even by the standards of 1974. He was the most important scientific witness called by the prosecution. He was the only scientist who claimed to have found NG under Ward’s fingernails. That enabled Higgs to say Ward must have kneaded explosives. Higgs and Elliot allowed their objectivity to become clouded by partisanship. Given that they either misrepresented or concealed certain aspects of the evidence can we be confident in the other aspects of it. We are persuaded that the scientific case against Ward is unsupportable.

What must be made clear is that if the expert witness has carried out any tests which may cast doubt upon the opinion being expressed the party calling the witness must disclose the record of all such experiments or tests. Also, the expert witness has the duty to bring to the attention of those instructing, the results of all such experiments or tests so that they can be brought to the attention of the other parties. No doubt the process can be simplified by the experts for both sides working together.

We note in passing that where any issues of immunity arise, it would be incompatible with a person’s right to a fair trial to allow the prosecution who occupy an adversarial position in criminal proceedings to be judge in their own cause on any asserted claim to immunity. It would be wrong to allow the prosecution to withhold material documents without giving notice of that fact to the defence.

Conclusion

This was an extraordinary case. Ward for some time said things to convince people that she was involved with the IRA. It is to the credit of some of those in Northern Ireland that when they became aware of what she said, they took no action against her. Whilst she denied her confessions at trial, by then the scientific evidence seemed to establish that she had been in close contact with NG and this seriously undermined the force of her denials. The courts must be vigilant to ensure that it can identify confessions which may be untrue. Therefore all of those involved with prosecutions must comply with their basic duty to ensure a fair trial. In this case, some police officers, scientists and members of the DPP’s office failed to carry out this basic duty. We greatly regret that as a result, a grave miscarriage of justice has occurred. As a result we must declare that all of the convictions were unsafe and unsatisfactory. We allow the appeal and quash the convictions on all counts.

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