Law report: Withdrawing uncorroborated confession case from jury: Regina v McKenzie - Court of Appeal (Criminal Division)(Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Simon Brown and Mr Justice Roch), 24 July 1992.

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Where the prosecution case against a defendant, who suffers from a significant degree of mental handicap, depends wholly on uncorroborated confessions which are unconvincing in that they lack incriminating details or are inconsistent with other evidence or are inherently improbable, the judge should, in the interests of justice, take the initiative and withdraw the case from the jury.

The Court of Appeal quashed the appellant's convictions for two offences of manslaughter but dismissed the appellant's appeal against two convictions for arson.

The Crown's case against the appellant, David Stuart McKenzie, on two counts of killing two elderly women depended wholly on confessions made by the appellant. When confessing to the two killings, the appellant also confessed to 12 other killings. The Crown's case on the arson counts also relied on confessions but was also supported by independent evidence.

At his trial in 1990, the defence contended that the appellant suffered from a degree of mental incapacity which rendered his confessions so unreliable that they should be excluded. Medical evidence was given that the appellant, who had been detained at Rampton Hospital since 1987, was determined to stay in Rampton and might say what would achieve that result. The Crown conceded that the appellant suffered from a personality disorder but some facts disclosed in the confessions could only have been known by the killer.

The trial judge decided the confessions would not be excluded under the Police and Criminal Evidence Act 1984 since no pressure had been put on the appellant when interviewed by the police and the jury would have expert medical evidence to help it evaluate the appellant's reliability.

The jurors were directed that the medical evidence supported diminished responsibility and verdicts of murder were not open to them. The appellant was convicted of manslaughter and arson and in respect of each offence, ordered to be detained in Rampton and made subject to a restriction order without limit of time.

Geoffrey Robertson QC, who did not appear below, and Philip Waller (Bryan & Armstrong, Mansfield) for the appellant; John Bevan (CPS) for the Crown.

LORD TAYLOR CJ, giving the judgment of the court, said that the trial judge had been entitled not to exclude the confessions. However, it was argued that the case should have been withdrawn from the jury or that the Court of Appeal should hold that the verdicts were unsafe and unsatisfactory where the prosecution case depended wholly on the the defendant's uncorroborated confessions; the defendant suffered from mental handicap or disorder; and the circumstances were such as to raise significant doubts as to the truth of the confessions.

Whether there was evidence capable of amount to corroboration was a matter which in most cases presented no problems. What degree of mental handicap a defendant had, and what degree shold be required to fulfil the second factor was less clear. The third factor raised even more difficult issues. Moreover, the question whether the circumstances raised doubts as to the reliability of any confession was a question of fact. It would therefore normally be a matter of the jury to decide.

Nevertheless the court considered that where (1) the prosecution case depended wholly upon confessions; (2) the defendant suffered from a significant degree of mental handicap; and (3) the confessions were unconvincing to a point where a jury properly directed could not properly convict upon them, then the judge, assuming he had not excluded the confessions earlier, should withdraw the case from the jury.

The confessions might be unconvincing, for example, because they lacked the incriminating details to be expected of a guilty and willing confessor, or because they were inconsistent with other evidence, or because they were otherwise inherently improbable.

Cases depending solely or mainly on confessions, like cases depending on identification evidence, had given rise to miscarriages of justice. Therefore, when the three conditions above applied at any stage of the case, the judge should, in the interests of justice, take the initiative and withdraw the case from the jury.

There was much coverage of both killings in the media. Knowledge of the basic circumstances of the killings was certainly not confined to the killer.

The court had carefully reviewed the knowledge contained in the confessions to the killings, the errors and omissions, some of which were striking, and bore in mind the appellant's general credibility was diminished by his confessions to other killings which he could not possibly have done, and by his motivation to ensure his confinement to Rampton.

Not only was there no corroboration of the confessions, there was a total and suprising absence of any evidence pointing towards the appellant from any other source. Each member of the court would have felt at least a lurking doubt as to whether the verdicts of manslaughter were safe and satisfactory. Since the trial there was now fresh evidence which made it unlikely that the appellant could be responsible for another killing for which the jury were told that the appellant was a suspect.

Putting together the doubts about the confessions, the fresh evidence and flawed passages at the beginning of the summing-up, the manslaughter verdicts were unsafe and unsatisfactory. However the arson verdicts were not open to the same criticism.

The appeals against conviction of manslaughter were allowed. Those in relation to the arson counts were dismissed. The overall sentence remained the same.