Hunter and Others v Chief Constable of West Midlands

JurisdictionEngland & Wales
Judgment Date17 January 1980
Judgment citation (vLex)[1980] EWCA Civ J0117-2
Date17 January 1980
CourtCourt of Appeal (Civil Division)
Noel Richard McIlkenny
Plaintiff (Respondent)
The Chief Constable of the West Midlands
First Defendatnt (Appellant)
The Home Office
Second Defendant
John Francis Walker
Plaintiff (Respondent)
The Chief Constable of the West Midlands
(First Defendant) (Respondent)
The Home Office
Second Defendant
Robert Gerard Hunter
Plaintiff (Respondent)
The Chief Constable of the West Midlands Police
(First Defendant) (Appellant)
The Chief Constable of the Lancashire Police
Second Defendant (Appellant)
The Home Office
Third Defendant
William Power Hugh Daniel Callaghan and Patrick Joseph Hill
Plaintiff (Respondent)
Chief Constable of Lancashire Police Force
First Defendat (Appellant)
Chief Constable of West Midlands Police Force
Second Defendant (Appellant)
Secretary of State for the Home Office
Third Defendant

[1980] EWCA Civ J0117-2


The Master of the Rolls (Lord Denning)

Lord Justice Goff (not present) and

Sir George Baker

In The Supreme Court of Judicature

Court of Appeal

On Appeal from The High Court of Justice

Queen's Bench Division

(Mr. Justice Cantley)

MR. A. TAYLOR (instructed by Messrs. Brian Thompson & Co.) appeared on behalf of the Plaintiff McIlkenny.

MR. R. ALLEN (instructed by Messrs. Barrington Black & Co.) appeared on behalf of the Plaintiff Walker.

MR. S. SEDLEY (instructed by Messrs. Geffens) appeared on behalf of the Plaintiff Hunter.

MR. D. TURNER-SAMUELS, Q. C. and MR. R. TANSEY (instructed by Messrs. Fisher Meredith & Co.) appeared on behalf of the Plaintiffs Power, Callaghan and Hill.

MR. M. TURNER, Q. C. and MR. P. TWIGG (instructed by Messrs. Barlow Lyde & Gilbert) appeared on behalf of the Chief Constable of the West Midlands Police.

MR. P. TWIGG (instructed by (Brian Hill, Esq., Solicitor) appeared on behalf of the Chief Constable of the Lancashire Police.

MR. H. CARLISLE, Q. C. and MR. A. LAWS (instructed by the Treasury Solicitor) appeared on behalf of the Home Office.




Thursday, 21st November, 1974


Eight minutes past eight in the evening. The telephone rang in a newspaper office in Birmingham. A young man picked it up. It was from a call-box. "Is that 'The Birmingham Post'?" asked a voice with an Irish accent. "Yes". The voice went on: "There is a bomb planted at the Rotunda. There is another in New Street near the Tax Office". That was all. At once the young man dialled the police. He repeated the message to them. The police were quick as lightning. Their cars rushed to those addresses – screeching their way. But they were too late. The bombs went off before the police could get there. Each in a crowded public house. One in "The Mulberry Bush". The other in "The Tavern in the Town". Both were devastated. Dead and dying lay everywhere. Twenty-one people were killed and 161 injured.


Outside the police were going into action swiftly. To catch the terrorists. They sent out squads to every exit from Birmingham, by road, rail or air. They went to the railway station at New Street. It was quite close to the bombed premises. They found that a train had left New Street for Belfast. It had left at 7.55 p. m., about twenty minutes before the bombs went off. It had many Irish passengers on it. It was due at Heysham – 200 miles away – a little before eleven o'clock at night. The passengers would then take the boat to Belfast. The police then did a fine piece of detective work. As a result they had reason to suspect five of the passengers on that train. They telephoned to the Lancashirepolice. They met the train. Four of the men came through the barrier at Heysham. They were arrested by the Lancashire police. The fifth was arrested on the boat. They were taken the four miles to the police station at Morecambe. The men told the Lancashire police that they were on their way to attend the funeral in Belfast of James McDade. He was a prominent member of the I. R. A.. He had made a mistake while setting a bomb in Coventry. It had exploded too soon and killed him. He was to be buried in Belfast.


Friday, 22nd November, 1974


During the night the Birmingham police went post haste to Morecambe, arriving early on the next day. It was a Friday. They interviewed the five men that day. In the evening, with an escort, they drove the men back by car the 200 miles to Birmingham. The men were then detained at the Queens Road Police Station. Later the same night the police arrested a sixth man, called Callaghan, at his home in Birmingham. They took him also to the Queens Road Police Station.


Saturday, 23rd November, 1974


The six men were further interviewed. They all made statements. Some in writing. Some by word of mouth. In them they admitted their parts in placing the bombs. Now here is the crucial point in the whole case: Apart from those confessions, the police had no sufficient evidence on which to charge the men, let alone convict them. There was nothing but suspicion of the vaguest kind quite unsupported by any concrete evidence. So the statements were vital. Were they obtained voluntarily or not? That was to be the decisive point at the trial.


Sunday, 24th November, 1974


The six men were photographed at the Queens Road Police Station. These photographs come much into the rest of the story. They were polaroid photographs in black and white. They were not very clear but the photograph of one of the men, called Walker, showed a dark look under his right eye which might be a bruise. Later that day the six men were taken to the lock-up at Steel House Lane in Birmingham.


Monday, 25th November, 1974


The six men were brought before the magistrate. Two young solicitors were there as "duty solicitors" that morning. They undertook the task of defending the men. They saw them in the cells. Some of the men complained that they had been beaten up by the police. They pointed to scratches on their chests to prove it. But those scratches might have been inflicted by the men themselves. The men did not complain of any blows to their faces. Walker explained his black eye by saying that he had fallen and hurt himself. He did not suggest that it had been done by the police. The men were taken before the magistrate. "The courtroom was full. No one noticed any marks on their faces except Walker's black eye.


Formal evidence was taken. The magistrate remanded the men in custody. They were taken to the Winson Green prison. They got there at about 11.15 a. m. They were received by the prison officers. At about 2.00 p. m. they were examined by the prison doctor, Dr. Harwoods: and retained in custody.


Three days later – Thursday, 28th November, 1974


The six men were again brought before the magistrate. At their appearance there were gasps of astonishment. They had been beaten up. Their faces were black and blue. Thejournalists reported it. The papers were full of it. The men were again remanded in custody. But there had to be an inquiry.


Friday, 29th November, 1974


The governor of the prison had his own inquiry. His officers made written statements in which they said that the six men had bruises when they were first brought into the prison. Their statements, if believed, would go to show that the police had beaten them up before they were received into the prison. It may be that the prison officers also beat them up, but so had the police.


18th December, 1974 – 13th May, 1975


The Home Office were so concerned that they asked Mr. Owen, a senior police officer from Lincolnshire, to carry out an inquiry. He did so. It took him nearly five months. He saw many witnesses and took many statements. These related only to what happened after the men were received at the prison. Not beforehand because that was sub judice. Mr. Owen reported on the 13th May, 1975. His report has not been disclosed.


9th June, 1975 – 15th August, 1975


The six men were tried before Mr. Justice Bridge and a jury at the Castle at Lancaster. It took over ten weeks. There was evidence of the movements of the men on the 21st November and of traces of explosives found on two or three of them: but the evidence was quite insufficient to warrant a conviction unless the men's statements were admitted in evidence. The judge so told the jury. He said that, apart from their statements, he would not have left this case for their consideration: because the other evidence, although raising suspicion, "still fell a long way short of anything that anyone could possibly regard as proof".


Trial within a trial


The important point was: Were the statements admissible in evidence? All the counsel for the six men objected to them. They said that they had been induced by violence and threats made by the police to them. To decide on their admissibility, the judge held a "trial within a trial". He sent the jury away. He took much evidence from the police officers and the accused men. It took him eight days: and he gave a reasoned decision covering fifteen pages. The judge said:


"Certainly, according to the Police evidence, no sort of violence was used and no sort of threats were addressed to any of the prisoners.


"On the other hand, the defendants all give evidence, with the exception perhaps of Callaghan, of gross personal violence being used to them… All of them, including Callaghan, complain of the most outrageous threats as to what would happen to them or, in some cases, their families… all allege that the whole of the Police evidence… was substantially fabricated evidence.


"… It is an inescapable conclusion that there is gross perjury being committed on one side or the other".


In the course of the "trial within a trial" one fact emerged quite clearly. These six men were badly bruised when they appeared in court on Thursday, 28th November, 1974. If the police were to be believed, these injuries were not occasioned...

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    ...hear the claim that otherwise would have been an abuse of process. Id. at 354 (citing McIlkenny v. Chief Constable of W. Midlands, [1980] Q.B. 283 at 334 (Eng.); Phosphate Sewage Co. v. Molleson, (1879) 4 App. Cas. 801 (H.L.) at 814 (117) Cf Taylor v. Sturgell, 553 U.S. 880, 884-85 (2008) (......
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