R Michael O'Brien v Director of Public Prosecution
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 28 November 2013 |
| Neutral Citation | [2013] EWHC 3741 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 November 2013 |
| Docket Number | Case No: CO/1948/2013 |
[2013] EWHC 3741 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
and
Mr Justice Irwin
Case No: CO/1948/2013
Ms Heather Williams QC (instructed by Bhatt Murphy Solicitors) for the Claimant
Mr Andrew Edis QC (instructed by Crown Prosecution Service) for the Defendant
Introduction
This is the judgment of the Court to which both members of the court have contributed. On 12 October 1987, a Cardiff newsagent Phillip Saunders was murdered. The Claimant (Mr O'Brien) and two other men, Darren Hall and Ellis Sherwood, were charged and subsequently convicted of the murder, in July 1988. Mr Hall implicated his two co-defendants in the robbery and murder of Mr Saunders. All three were sentenced to life imprisonment.
On 25 January 2000, the Court of Appeal (Criminal Division) heard an appeal by all three men against their convictions. The appeal came before the court by way of a reference by the Criminal Cases Review Commission, Case No. 98/6926/27/ 28/S1. The central plank of the appeal was that the "confessions" of Hall and his implication of his co-defendants were unreliable, because of his psychological state and mental makeup. After receiving fresh evidence bearing on that point, the Court of Appeal quashed the convictions.
An ancillary point in the appeal related to evidence given at the trial by Detective Inspector Lewis. It was his evidence that he had overheard an incriminating conversation between Mr O'Brien and Mr Sherwood in the cells of Canton Street Police Station. The Court of Appeal reached no conclusion about the veracity of DI Lewis's evidence, but did conclude, for reasons we shall explain below, that his evidence would be opened to fuller challenge at any retrial. Following the appeal, Mr O'Brien was released. He had spent more than eleven years in custody.
After his release, Mr O'Brien sued the South Wales Police for malicious prosecution and misfeasance in public office. There was a broad range of allegations in the civil claim, but one important plank was the allegation that DI Lewis had fabricated the evidence of the conversation in the police station and perjured himself when giving evidence about it to the jury. Very shortly before the due trial date, the South Wales Police settled the claim for a substantial sum of money: this court was told there was a payment of £300,000 for non pecuniary losses. The settlement was in October 2006. It was reached shortly after service of some of the expert linguistics evidence placed before this court.
Following the settlement Mr O'Brien sought to have DI Lewis, who by then had retired from the police with the rank of Detective Chief Inspector, prosecuted for perverting the course of justice, perjury and/or misfeasance in public office. A fresh police investigation took place the results of which were submitted to the Crown Prosecution Service. On 16 November 2012, the Specialist Prosecutor of the Special Crime and Counter Terrorism Division of the CPS concluded that there was insufficient evidence to provide a realistic prospect of conviction against Stuart Lewis for any offence. This decision was communicated to Mr O'Brien's solicitors in a letter of 19 November 2012.
Mr O'Brien seeks judicial review of the decision not to prosecute. Through his counsel, Ms Heather Williams QC, Mr O'Brien accepts that, in order to succeed in such a claim, he must show that the decision was one at which no reasonable prosecutor could have arrived. Ms Williams formulates her challenge under three heads. Firstly she submits that the prosecutor misdirected herself and/or conducted a seriously flawed analysis in relation to the evidence from the linguistic experts. Secondly, she submits that the prosecutor failed to conduct a balanced and even-handed assessment of the evidence, in particular failing critically to examine the accounts provided by Mr Lewis and his police colleagues: and thirdly she suggests that the prosecutor misunderstood and/or failed to take into account highly relevant evidence on a number of specific issues. Taken together, Mr O'Brien contends that the flaws in the prosecutor's reasoning render the decision unsustainable.
The Evidence
Phillip Saunders was attacked and robbed on 12 October 1987. He died from his injuries on 17 October. The three men who were tried were arrested and interviewed in late October that year, but all three were released on 2 November. As the Court of Appeal in 2000 recited, all three were released despite the fact that Hall had already made admissions of being involved in the attack on Saunders, which admissions the police clearly doubted at that stage. Following further enquiries, the three were re-arrested on 10 November 1987.
At the time of his arrest Mr O'Brien was 20. He was a painter and decorator with one young child and another on the way. He had no previous convictions, although it was his own case that he had met the other two men on the evening of the attack in order to take and drive away motor cars. He had vehemently denied involvement in the murder during interviews before his release on 2 November. The final interview before his release involved a confrontation between Mr Hall and Mr O'Brien, the central passages of which read as follows:
Sgt Fenton (indicated Darren Hall) "I am Sgt Fenton. Do you know this person?"
O'Brien: "Course I do. What you been saying."
Hall: "It's no good Michael, you might as well come clean. I told them I was at the entrance and you and Ellis went in the car park."
O'Brien: "You bastard you'll fucking get it."
Hall: "I told them we talked about rolling Saunders."
O'Brien: "Yeah yeah, I know that but I didn't."
Fenton: "Darren [Hall] Isn't it right that when you were keeping watch you saw Saunders arrive and a few minutes later and you heard noises?"
Hall: "Yes Bang Bang and they come out and told me to run."
O'Brien: "You bastard you're a load of shit."
Hall: "It's up to you Michael I've told them the truth."
Mr O'Brien was arrested at 8.30 in the morning of 10 November, arriving at the police station just before 9.00am. He was held without legal access through into the early afternoon, when he saw a solicitor. He was interviewed during the afternoon, following which at 18.30 he indicated he was not going to answer any further questions which he had previously been asked. At 20.30 hours he was in the cells at the police station.
DI Lewis was the Detective Inspector in charge of the investigation. He had joined the police force in 1966 and became a detective in 1973. He was promoted to Detective Inspector in 1983. Over the course of his career he had a considerable number of commendations from judges, magistrates and superior officers. As we set out below, one significant case, details of which emerged after these events, would have given some material for hostile cross-examination as to DI Lewis's record. A number of complaints were made against him between 1978 and 1997. None has been found to be proved or substantiated.
Mr O'Brien's custody record shows that he was checked in his cell at 8.30pm. Mr Sherwood's custody record shows that he was returned to the cells at 8.40, after an interview and a meal. DI Lewis's evidence was that he went to the cell area and overheard a conversation between them. Mr Lewis made an entry in relation to this conversation in Mr O'Brien's custody record. It is timed 20.43 and reads:
"Conversation between O'Brien and Sherwood overheard by DI Lewis. Note made. Signed S Lewis DI"
It is noteworthy that this entry follows an entry of 20.50 which records Mr O'Brien being removed from the cell area to be finger printed.
DI Lewis made a Criminal Justice Act statement on 4 December 1987. His account was that he had placed himself outside the cell complex at the police station at 20.43, and heard the conversation between the two men. He said that he made a note on the back of an expenses form which he had with him. His statement gives the conversation as follows:
"O'Brien: They are going to charge me and you.
Sherwood: No they are not, all they have is Hall, he is grassing us.
O'Brien: I can't hold out for much longer, I may have to tell them the truth.
Sherwood: Don't do that, we'll be fucked.
O'Brien: I can't hold out much longer, I might have to tell them what happened.
Sherwood: You're talking about life, being on remand means nothing.
O'Brien: I can't hold out much longer, I'm scared. I'll have to tell them what happened.
Sherwood: Just keep your mouth shut.
O'Brien: Why don't you tell them what happened.
Sherwood: I can't can I? If Hall hadn't opened his mouth we wouldn't be here.
Sherwood: I think there is someone listening. I'll catch up with you later, OK?
O'Brien: Yeah, OK."
The custody record shows Mr Sherwood being removed from his cell at 21.00 for "process" returning to his cell at 21.20. The next entry in Mr Sherwood's custody record is the entry by DI Lewis relating to the conversation, again timed at 20.43, out of sequence. Mr O'Brien was returned to his cell at 21.50.
Although the matter appears not to have surfaced in the original trial, two officers subsequently gave evidence that DI Lewis showed them the notes of the overheard conversation shortly after it had taken place and before the Defendants were confronted in interview with what DI Lewis suggested they had said.
The custody record then shows Sherwood being...
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