Thursday Law Report: How evidence of police misconduct may be used

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The Independent Culture
19 November 1999

Regina v Twitchell

Court of Appeal, Criminal Division (Lord Justice Rose, Vice President, Mr Justice Jowitt and Mr Justice Hooper) 26 October 1999

THE COURT of Appeal considered the circumstances in which evidence of misconduct by police officers in other cases could be relied upon in an appeal against conviction.

The Court of Appeal allowed the appeal of Keith Twitchell against his convictions of manslaughter and robbery in 1982, following a reference by the Criminal Cases Review Commission.

The appellant had alleged both at and prior to his trial that he had been tortured into confessing to the crimes with which he was charged by having a plastic bag placed over his head by police officers.

The Commission had referred the case to the court on the basis that some of the police officers involved in the appellant's case had since been discredited in subsequent cases where convictions had been quashed. A similar allegation in respect of the use of a plastic bag had been made in another case two years after the appellant's first such complaint, and that conviction had been quashed (R v Treadaway, unreported, 18 November 1996), following judgment in a civil claim for damages against the police in 1994.

Stephen Solley QC and Michael Turner (Registrar of Criminal Appeals) for the appellant; Noel Sweeney and Sallie Bennett-Jenkins (Crown Prosecution Service) for the Crown.

Lord Justice Rose VP said that counsel for the Crown had submitted that the correct approach to the crucial aspect of the appeal, in relation to the reliability or otherwise of the police officers as to the "bagging" incident, was to consider the effect of the new material in relation to the officers by considering how and to what extent it could properly have been used if it had been available at trial.

The correct principles to be drawn from the authorities were, first and fundamentally, that the evidence sought to be relied on must be relevant; secondly, that cross-examination as to a relevant criminal or disciplinary conviction was permissible; thirdly, that where an acquittal in one case indicated that the jury must have entirely rejected the evidence of the officers in question, they might be cross-examined about that in a subsequent case; and fourthly, that it was 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 was permissible to cross-examine an officer about any relevant finding of fact by a court, whether in civil proceedings or in a criminal appeal. Care had, however, to be exercised in relation to matters in the Court of Appeal or elsewhere which were not findings of fact. The judgment in R v Campbell (unreported, 14 October 1999), which emphasised that the function of the Court of Appeal was not to be a fact finding tribunal, but was, rather, to form a judgment whether in the light of material known to the court but not known at the time of the trial the verdict was unsafe, had to be borne in mind.

The cases in the last decade fell into three categories. First, those where an appeal had been allowed on the basis of a general feeling of unease without any evidence having been called before the Court of Appeal, and without any specific concession having been made on the part of the Crown. Such cases did not afford a basis for cross-examination subsequently.

The second category was where the court had made a specific finding of fact, having heard evidence, or specific concessions had been made by the Crown. In such cases there could properly be cross-examination as to credit on those findings of fact or concessions.

The third category was where cases in the second category had been relied on the Court of Appeal as demonstrating the unreliability of a particular witness without there being, in the later appeal, any specific finding in relation to any particular witness. Such cases could not support cross-examination at subsequent trials.

In the present case there was an ample basis on which to say that the convictions were unsafe.