Neutral Citation Number: [2008] EWCA Crim 1869
 
No: 200800455/460/463/C2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Wednesday, 30th July 2008
 
B e f o r e:

LORD JUSTICE PILL 

MR JUSTICE KING 
 
DAME HEATHER STEEL DBE 
 
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R E G I N A 

v 

DAVID JAMES, JOHN MELNICHENKO AND COLIN RICHARDSON
 
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Mr A Wesley [solicitor advocate] appeared on behalf of the First Appellant 
Mr A Langdale appeared on behalf of the Second Appellant 
Mr A Reynolds appeared on behalf of the Third Appellant 
Mr S Smith QC appeared on behalf of the Crown 
 
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J U D G M E N T 

1.	LORD JUSTICE PILL:  On 19th September 1986, in the Crown Court at Nottingham before Tucker J and a jury, David James, John Melnichenko and Colin Richardson were convicted of grievous bodily harm with intent under section 18 of the Offences Against the Person Act 1861.  They were acquitted of attempted murder and of causing grievous bodily harm with intent to resist apprehension.  David James was sentenced to eight years' imprisonment, John Melnichenko to eight years' youth custody and Colin Richardson also to eight years' youth custody.
2.	A co‑defendant, Alan Richardson, was convicted of the same offence and sentenced to eight years' youth custody. On 29th June 2004, this court allowed his appeal against conviction and his conviction was quashed.  The prosecution did not oppose the appeal.  The matter had come before the court, as do the present appeals, as a result of a reference by the Criminal Cases Review Commission under section 9(1) of the Criminal Appeal Act 1995.
3.	At the trial each of the defendants was represented by leading counsel.  
4.	They appeal against conviction.  This is, as we have said, a reference by the CCRC.  Melnichenko and Colin Richardson did not appeal against conviction or sentence following their trial.  We agree with the CCRC that there are exceptional circumstances which justify this reference under section 13(1)(a) of the 1995 Act.  James did serve notice of appeal, but, in circumstances to which we will refer, he did not pursue it.
5.	We can say straightaway that we do propose to allow these appeals.  It is, however, necessary, because of the public interest involved, to deal in some detail with the circumstances of the offence and the reference.
6.	During the early hours of 26th October 1985 a British Transport Policeman, Constable Neil Harvey, was performing duties on British Rail property in Nottingham.  He was last seen at about 1.50 a.m..  At 4.30 a.m. he was found near the Fyffes warehouse on Castle Meadow Road.  He was semi‑conscious and had been severely beaten about the head.  He was taken to hospital in a critical condition.  He was left virtually blinded in one eye and with no sense of taste or smell.  Medical opinion was that severe blows with a blunt heavy object had caused the victim's injuries.  He could remember nothing about the attack.
7.	On 31st October, four to five days later, the appellants and co‑accused were arrested for the offence following evidence from a neighbour of Melnichenko and James as to a conversation heard between them about Fyffes.  Colin Richardson and Alan Richardson are brothers.  David James and Melnichenko are half‑brothers, having the same mother.
8.	The prosecution case was that it was the appellants and the co‑accused who had inflicted the grievous bodily harm with intent.  The victim probably disturbed them while they were trying to break into the Fyffes warehouse.  There was evidence of disturbance at the warehouse premises.
9.	Each of the appellants made confessions to the police and the details they gave were in similar terms to each other.  Their confession evidence was said to be consistent with that of the neighbour, who had overheard a conversation between two of them the morning after the offence had been committed.
10.	At trial the defence case was that the four men had nothing to do with the attack on the complainant.  There was no scientific evidence linking them with the attack.  The confession evidence was unreliable.  The confessions did not represent the truth.  The appellants had been denied access to a solicitor.  Words were put into their mouths, or the confessions were made following inducements to them.  The prosecution case depended on the confessions which had been made.
11.	Each of the appellants gave evidence, as did Alan Richardson.  They described their movements.  They claimed not to have been at the scene of the crime that night.
12.	Mrs James, the mother of David James and Melnichenko, gave evidence that they were at home.  Mrs Richardson also gave evidence which supported their alibi, as did another witness.
13.	At the time of the offences James was 20 years old, Melnichenko 18 years old, Richardson 17 years old, although he was 18 by the time he was interviewed a few days later.  Alan Richardson was 19 years old.
14.	It was proved that access to a solicitor had not been permitted to any of the defendants.  Superintendent Newton gave evidence that the reasons for that were, first, he did not believe that all the assailants were in custody; secondly, that the police had not recovered the victim's truncheon; thirdly, the weapon which was used in the attack had not been recovered.  He believed that the interests of justice might have been compromised had the suspects been allowed to consult a solicitor as this may have resulted in others involved being alerted and the weapon disposed of.
15.	We refer to the sequence of events in custody.  Both Melnichenko and Colin Richardson had on earlier days given witness statements to the police.  Alan Richardson did so on his arrest.  They were arrested at 5.35 p.m. on 31st October simultaneously.  At 9.20 p.m. Melnichenko admitted taking part in the attack and said he did so with the co‑accused.  There was no custody record indicating what had happened to him between his arrest at 5.35 and the first recorded interview which was at 9.37.  The co‑accused denied any involvement in the attack.  Colin Richardson did so during his second interview, which lasted from 10.00 p.m. until midnight.
16.	At a third interview James continued to deny the offence.  At 12.30 a.m. on 1st November the police took Melnichenko to see James and asked him to repeat his confession in front of James.  He did so.  James continued to deny his involvement at a further interview, the fourth interview, of him.
17.	Later that morning police took Melnichenko to see Colin Richardson and told him that Melnichenko had confessed to all their involvement in the offence and to claim that Colin Richardson had thrown the first punch.  The prosecution evidence was that Colin Richardson had replied, "That's all I wanted to hear" and shortly afterwards admitted his guilt.
18.	James continued to deny guilt.  Melnichenko signed a document which amounted to a confession of his part.  Alan Richardson, interviewed for a fourth time, continued to deny involvement.  James at a sixth interview later that morning continued to deny involvement.  Alan Richardson was told that his brother, Colin Richardson, had also implicated him.
19.	At 1.54 p.m. Melnichenko was again taken to see James and repeated his admission of participation in the attack.  The prosecution evidence, disputed at the trial, was that James said to Melnichenko, "Why have you told them?  I thought we were not going to."  James then admitted his guilt at interview.
20.	In the afternoon Melnichenko was taken to Alan Richardson and shortly after that confrontation Alan Richardson confessed to his involvement in the attack.
21.	When summing up the case the judge put it in this way:
"The prosecution case is that each defendant at first strenuously denied involvement but that one by on, led by Melnichenko and subsequently confronted by him, each defendant admitted it and did so not once but several times in contemporaneously recorded interviews which were usually signed by the defendant in question."
22.	The point is made that the word "contemporaneously" was misleading, in that some of the interviews had not been contemporaneously recorded, but we refer to that passage to describe how the case was put to the jury.
23.	Each of the defendants gave evidence that they were elsewhere and were not involved.  We need not refer to that.  They did also give evidence about how they were approached while in custody.
24.	Melnichenko did not deny his confession and implication of the others.  He stated that he acted as he did after the police had told him that all his friends had implicated him and he would be convicted of attempted murder, but they could "get him off with GBH".  He claimed to have been assaulted and threatened by the police.  He signed the second interview because he wanted to get out of the police station, not having read the statement before he signed it.  As to the accuracy of his confession, he stated that some of it was the first thing that came into his head, but mostly it was in response to police suggestions and prompting.  As to the first confrontation with James, he said that he told James to admit it so that he could get out and get bail and see a solicitor.  James gave similar evidence that Melnichenko had said that.  None of his confessions were true he said.
25.	Colin Richardson said that he was denied access to a solicitor and locked in a cell.  He asked to see the police Code of Practice and to be allowed a phone call, but his requests were refused unless he agreed to "admit a bit".  He later signed a document because it was the only way he was allowed to make a phone call.  
26.	As to his admission following a second confrontation, James accepted that he had told the police he was at the scene of the crime.  He had done this because he was following his half‑brother John's advice, that if he admitted it he would be allowed bail and be able to see a solicitor.  He said he was very frightened.  The admissions he made at the eighth interview were a combination of lies, responses to prompting and suggestions following what he had seen in the media.  At that time he was unable to read or write.  Police had read his statement to him and he had signed it.  His inability to read or write leads to a subsidiary submission made on his behalf, that an appropriate adult should have been present with him during interview.
27.	Alan Richardson, whose appeal has been allowed, also said that he asked for a solicitor but the request was refused.  We need not refer to his other complaints.  He said he was frightened and agreed to what the police officers suggested had happened.  None of the confessions was true.  The police had refused to accept his many denials of the offence.  He made admissions only at the seventh interview.  He had been given details as to what had happened to the victim and that accounted for the similarity between his admissions and those of the co‑defendants.  During the eighth interview he was told that his previous statements did not contain enough detail.  He then gave further details but on the basis that he was simply agreeing with what the police put to him.  Some of the detail had also come from what had appeared in the news.
28.	The central complaints are, first, that the appellants had not been allowed access to a solicitor and, secondly, that no contemporaneous record had been made of many of the interviews.
29.	Melnichenko said that he was refused access to a solicitor at 6.17 p.m., that is within an hour of his arrest.  He had been detained for over 43 hours before being charged.  At no time during that period was he given access to a solicitor.  Within hours of being charged, and eventually being allowed access to a solicitor, he had made a retraction statement, denying the offence and denying the confessions, as did all the defendants.
30.	As to the second allegation, there was a lack of contemporaneous recording of all the confrontations of 1st November involving Melnichenko with James (two confrontations), Colin Richardson (one confrontation) and Alan Richardson (one confrontation on the afternoon).  There was no contemporaneous recording of the crucial parts of the interviews in relation to any of the accused, it is submitted.  That extends to the seventh interview of James, Colin Richardson and the eighth interview of Alan Richardson.
31.	The Police and Criminal Evidence Act of 1984, while on the statute book at the time of the arrest, had not come into force.  The guidance at the time of arrest as to police conduct appeared in the Judges Rules, backed up by Home Office Circular 31 of 1964 as amended.  The circular provided that:
"... in addition to complying with the Rules, interrogating officers should always try to be fair to the person who is being questioned and scrupulously avoid any method which could be regarded as in any way unfair or oppressive."
32.	The Rules themselves provided:
"It is a fundamental condition of the admissibility of evidence against any person, equally or any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression."
33.	The court has to consider what test it should now apply in the light of subsequent developments in the law, including, of course, the 1984 Act, to interviews which occurred before the Act came into force.  The appropriate test was stated by Lord Bingham CJ in R v Ashley King [2000] 2 Cr App R(S) 391:
"In looking at the safety of the conviction it is relevant to consider whether and to what extent a suspect may have been denied rights which he should have enjoyed under the rules in force at the time and whether and to what extent he may have lacked protections which it was later thought right that he should enjoy.  But this court is concerned, and concerned only, with the safety of the conviction.  That is a question to be determined in the light of all the material before it."
34.	That approach was followed in this court (Lord Bingham CJ presiding) in R v Bentley (deceased) [2001] 1 Cr App R(S) 307.  Lord Bingham stated:
"The conduct of the trial and the direction of the jury must be judged according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act. 
We must judge the safety of the conviction according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act. 
'Where, between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time.'"
35.	As to the need for the presence of a solicitor, in R v Samuel (1988) 87 Cr App R 232 this court stated that the right of access to legal advice was:
"... one of the most important and fundamental rights of a citizen."
36.	Where it was sought to justify denial of the right of access to a solicitor on reasonable grounds that could not be done except by reference to specific circumstances, including evidence about the person detained or the actual solicitor involved.  Reference was made to section 58 of the 1984 Act.  The court stated that the tests were stringent and:
"... the number of times that a police officer could genuinely be in that state of belief will be rare."
That is a state of belief whereby the solicitor will act improperly.
"... the grounds put forward would have to have reference to a specific solicitor.  We do not think they could ever be successfully advanced in relation to solicitors generally."
 ]
37.	We turn to the decision of this court in the case of Alan Richardson.  The court, Keene LJ presiding, described the facts, including the signed admissions made only at late interviews by Alan Richardson.  The court continued at paragraph 11:
"At trial he agreed that he had signed the statements, but said he had done so because the police had told him that he had a mental blockage and they could have him committed to a mental institution.  The details of the attack, he said, had been supplied by the police at the time of the interviews. 
Eventually, at just before 1.00 p.m. on 2nd November, the appellant was charged.  He was then given access, for the first time, to a solicitor.  He immediately complained about his treatment by the police, and before long retracted his confessions. 
The heart of this appeal, and indeed of the reference by the Commission, relates to the circumstances in which the appellant's confessions were obtained.  In particular, emphasis is placed on the denial of access to a solicitor until he had confessed and been charged, and on the absence of any proper record of the earlier interviews, including the duration of those interviews, or some of them."
38.	The court then made reference to the Judges Rules, which included a statement:
"that every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor.  This is so even if he is in custody provided that in such a case no reasonable delay or hindrance is caused to the process of investigation or the administration of justice by his doing so."
39.	The court referred to authority, including Ashley King and Samuel to which we have referred, and stated at paragraph 19:
"This is a point which is readily acknowledged by the Crown.  Mr Thompson QC fully accepts that, fairly soon into the series of interviews, denial of such access to a solicitor could no longer be justified by contemporary standards of fairness, even if it had been justified initially.  The Crown concedes that what happened in this case amounted to a breach of section 58 of PACE, as well as a breach of the then operative Judges Rules."
40.	Having considered further argument, the court concluded at paragraph 23:
"The prosecution does not seek now to resist this appeal, and, in our judgment, rightly so.  We accept the arguments put forward on the appellant's behalf.  By current standards of fairness the admissions made by him in the final three interviews should never have been allowed to go before the jury.  Had that been the ruling, the case against the appellant would have been non‑existent."
41.	We have received a detailed skeleton argument from Mr Langdale on behalf of Melnichenko.  Mr Wesley on behalf of James and Mr Reynolds on behalf of Colin Richardson rely on the report of the CCRC and adopt the submissions there made.  The Commission stated at paragraph 231:
"The Commission considers that there is a strong case for referral for David James, Colin Richardson and John Melnichenko on the basis of the strength of the Court of Appeal's judgment in Alan Richardson, as the court took an exceptionally critical view of the officers involved in the case.  The conduct of the officers so pervaded the admissions that the Commission considers it to be a real possibility that the Court of Appeal will reach a similar conclusion in relation to [the present appellants].  
232.  The Commission observes that it is an additional factor in the current referrals that it is difficult to unravel the extent to which the confrontations and statements from other defendants had an affect on the making of the admissions.  Colin Richardson was shown Alan Richardson's statement in interview.  In the summing‑up, the judge had correctly directed the jury as follows.  
'If you are satisfied that a defendant made an allegation in the presence of another defendant, and that the other defendant positively accepted and acknowledged it as being true, then that of course is evidence against that other defendant too.' 
233.  If Alan Richardson's confessions were unsafe, then any confession elicited on the basis of them was also likely to be found to be unsafe by the  court.  Whilst this makes the strongest case for referral that of Colin Richardson, the Commission believes that there is a strong basis for referral of all three youths."
42.	Mr Reynolds adopts that paragraph, stating that the confession of Colin Richardson followed that of his brother.
43.	The Commission stated its conclusions, paragraph 251:
"The Commission notes that the only substantial evidence against [the appellants] was their confessions to the police.  Without such confessions, the Commission is confident that the cases would not have proceeded to trial.  The confessions were obtained in breach of the rules applicable at the time and in circumstances which denied them important safeguards later thought necessary to avoid the risk of a miscarriage of justice.  
252.  In the Commission's opinion, the judgments in Bentley and Richardson regarding modern standards of fairness, and the cumulative circumstances surrounding the police interviews raise a real possibility that the confessions of [the appellants] would now be ruled inadmissible.  That in turn leads to the conclusion that there is a real possibility that the Court of Appeal would not uphold those convictions."
44.	The Commission also referred to the absence of an appropriate adult being present during the interviews with the illiterate appellant, that is David James.
45.	We mentioned earlier the previous appeal of James.  That was based, first, on the alleged unacceptability of the neighbour's evidence and, also, that the inducement offered to the neighbour to give her statement supported the case that inducements had been offered to the appellants.  It was also submitted that the confessions were more generally unsafe.  On advice from counsel then appearing James did not proceed with his appeal. 
46.	Mr Smith QC for the Crown does not, understandably in our view, oppose the allowing of these appeals.  
47.	We have come to the conclusion that the appeals must be allowed.  We note and respectfully agree with the general comments about fairness, about the police procedures at the time, and the way in which they are to be judged, made by this court in the case of Alan Richardson.  Distinctions are possible between his case and those of the appellants, but when considering the safety of the convictions, which is our task, the differences are not material.  The lack of safety of one conviction inevitably contaminates the safety of the others in the circumstances of this case where admissions were made and confrontations arranged.
48.	By present day standards these young men, and that is undoubtedly a factor to be considered, should have been allowed access to a solicitor and a contemporaneous record of the interviews should have been made.  For Mr Melnichenko there should have been a record of events in the police station between his arrest and his confession, which was the first to be made.  We do not need to go beyond that in assessing the conduct of the police and we have decided not to do so.  
49.	These convictions are unsafe and must be quashed.
50.	LORD JUSTICE PILL:  Does anything else arise? 
51.	MR SMITH:  No, thank you, my Lord.