THERE is a quaint rule of criminal law that says if a co-defendant makes a confession and at his trial does not give evidence, then that confession cannot be regarded by the jury as evidence against the other co-defendants. Privately, lawyers know full well that juries cannot but help take these confessions into consideration. Everyone - except the judges - can see the rule is nonsense.
This Wednesday, Tim O'Malley, foreman of the original Carl Bridgewater jury, blew the whistle on this rule by stating that the alleged confession of Patrick Molloy, one of the co- defendants in the Bridgewater murder case, had affected his thinking about the other three co-defendants, Jimmy Robinson, Michael Hickey and Vincent Hickey. He has confirmed what I have said for a decade, that the alleged confession of Molloy convicted the others.
It has taken this common-sense approach from a member of the public to deliver what I hope is a death blow to this absurd rule. There is a simple solution open to the courts, which
is to order separate trials of co-
defendants in such situations.
The case against the Bridgewater Four today is substantially different from that presented to the jury in 1979. The changes are too numerous to list, but of significance were the alibis put forward by each of the accused. Michael and Vincent said they were in a garage on the afternoon of the murder, buying a car. The prosecution said of Vincent Hickey that he was not at the garage on the day of the murder - although he may have been there the day after. Michael Hickey, the prosecution said, was never at the garage.
Ten years later, new witnesses proved to the satisfaction of the Court of Appeal that Michael and Vincent had indeed been at the garage that afternoon. The goal posts were promptly moved by the prosecution, which said they could have gone to the garage after the murder.
Jimmy Robinson and Pat Molloy said they left a pub on the day of the murder, bought flowers for Jimmy's girlfriend and spent the afternoon at her flat. The prosecution countered that they left the pub and went to Yew Tree Farm, site of the murder. Ten years later, key witnesses gave evidence that they had seen Jimmy carrying flowers on that day. The Crown again shifted the goal posts: they went to Yew Tree Farm after the flowers were purchased.
Brian Sinton, prisoner and informer, gave evidence that Michael had confessed to him. Ten years later, the Court of Appeal agreed that he could not be believed. So the case today hangs on the evidence of, among others, liars, pimps, professional grasses and the alleged confession of Pat Molloy.
Since the conviction of the Bridgewater defendants there have been five police inquiries and one unsuccessful appeal in 1989. The time is right for a further review of the case by the Court of Appeal. Substantial new evidence was forwarded by me to the Home Secretary on 7 June 1991. In this, experts concluded that Molloy's ability to make his confession in the circumstances described by the police was one in a million, and therefore it could not have been authentic. After a 20-month investigation the Home Secretary refused to refer the matter to the Court of Appeal.
Little is known about the evidence collected by the police during that time. I was told nothing by the Home Office. Repeated telephone calls and letters produced the same short response - that the matter was still being 'investigated'. The staff at C3, the miscarriages of justice department at the Home Office, were so tight- lipped it would be a pleasure to represent them should the need arise at a police station. What is known, however, is that Eric Shepherd, the expert adviser to the inquiry team, lent his own support to the evidence submitted by the defence experts, and even criticised the nature and circumstances of the police interviews with Molloy. Merseyside police ditched his report.
The inquiry ordered by the Home Secretary resulted in the Merseyside police investigating the original investigation of the Staffordshire police. With the best will in the world, I cannot believe that such investigations can be objective. The officers have a great interest in upholding the integrity of their colleagues. Defence solicitors are ignored, they are not asked to comment on evidence obtained - they are simply left in the dark. The Home Secretary then has to rely upon these investigations, which are not subject to any independent scrutiny.
In deciding to refuse an appeal, Kenneth Clarke has acted as judge and jury: his job was to ascertain whether there was any credible fresh evidence that could go before a court. There was - his own expert said so. It was not for him to adjudicate on the merits of the experts' reports, for that is a judicial function.
When Mr Clarke refused the appeal in February, I said that the case would come back to haunt him or his successors. And so it has. Poor Michael Howard had been in office for less than 24 hours before the ghost of the Bridgewater Four descended upon him last Friday in the form of Dr Shepherd, revealing his support for the defence case.
Tim O'Malley's revelations have ensured that this case will remain in the public eye. Increasing disquiet over these convictions will only be allayed when the case is again referred to the Court of Appeal. It is a course of action that Mr Howard, unless he wishes to be the king with no clothes, would be wise to agree.Reuse content