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May

Great Caution

Written by Satish Sekar

Difficulties
Despite a long and sad history of miscarriages of justice due to cell confessions and people of bad character using and abusing the criminal justice system in the manner observed by the eminent British jurist, Sir Matthew Hale over three and a half centuries ago, unscrupulous criminals continue to be allowed to take advantage without consequences. Michael Stone's case is an excellent example of this.

Following his second conviction for the murders of Lin and Megan Russell and attempted murder of Josie Russell, Stone dismissed his lawyers, hiring the experienced QC, Edward FitzGerald, but his team were at a disadvantage. Having taken over from William Clegg QC, FitzGerald knew that he would not get a second bite of the cherry on appeal and that criticism of Clegg was likely to be counter-productive. Appeal judges hate such appeals, especially if it involves criticism, even implied ones, of judges, but had the law been completely satisfied, and if so, was it inadequate?

Best Placed
“If the prison informant has a significant criminal record or a history of lying then usually the judge should point this out to the jury and explain that it gives rise to a need for great care and why,” said the Vice-President of the Court of Appeal, Lord Justice (Sir Christopher) Rose in January 2005. “The trial judge will be best placed to decide the strength of such warnings and the necessary extent of the accompanying analysis.”

FitzGerald's arguments that Sir David Poole's warnings had not been strong enough did not find favour with the appeal judges, which consisted of Rose, Sir Alan Moses and Sir Robert (later Baron) Walker (of Gestingthorpe). They dismissed Stone's appeal, believing that the requirements of the law had been satisfied by Mr Justice Poole.

But their failure to grasp the fact that a detailed alleged confession can be concocted easily if the informer has access to the information needed beggars belief. Self-confessed perjurer Damien Daley had access to the information and the opportunity to decide upon the precise content his statement would take for at least three days by his account. His statement came three days after the alleged cell confession. It may have been opportunistic as he did not know in advance that the opportunity to do that would be provided, but it presented itself when Stone was placed in the cell next to his in the Segregation Block. A few words from judges, inadequate ones at that, could hardly set justice back on track.

Inherent Dangers
“Any case involving a cell confession will prompt the most careful consideration by the judge,” Rose said. “In the words of Lord Hope in Benedetto, at paragraph 31, such evidence calls for 'special attention.' We have no doubt that, in what Mr Sweeney described as the case of a standard two line cell confession, there will generally be a need for the judge to point out to the jury that such confessions are often easy to concoct and difficult to prove and that experience has shown that prisoners may have many motives to lie.”

This appears to be suggesting that prison informers should take the trouble to prepare carefully and produce detailed alleged confessions in order to be believed. Why should it be too difficult to concoct a detailed alleged confession, rather than a couple of lines? The issue, surely, is access to information.

If the informer has access to sufficient information, then concocting a detailed alleged confession is clearly possible. There is nothing in Daley's statement that he could not have gleaned from facts in the public domain, deduced from it, or from questioning. There is, therefore, no reason to believe his testimony in the circumstances of this case, especially given his criminal activity and extensive history of lying and even perjury, unless of course, one chooses to believe that this time, unlike all the others, the self-confessed perjurer was suddenly overcome by an overwhelming urge to break the habits of a lifetime and tell the truth.

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