202302376 B1 - [2025] EWCA Crim 1036

The issues for us are:-

We have concluded that this case should have been stopped under section 125 of the 2003 Act at the conclusion of the evidence. The judge’s failure to do that clearly therefore renders the conviction unsafe. We do not criticise the judge for failing to address this question, because he was not asked to do so. It was only after this trial that this court in BOB construed section 125 as placing a duty on the court to determine the questions raised in section 125 in such a case, even if no party raises the question.

In these circumstances it is not necessary for us to decide whether it was wrong to admit the evidence in the first place, or whether the observations we have made about the judge’s directions, were, on their own, such as to render the conviction unsafe.

Dunne was a criminal and paid police informant who was in the habit of passing information to the police about other criminals for his own benefit. In June 1997 he found himself sharing a cell with the appellant, who had been interviewed as a suspect for this murder in April. Dunne did not tell anyone that the appellant had confessed murder to him until he spoke to the police in August. In August, in the hope getting bail or a few hours with his family, Dunne told the police that the appellant had confessed two burglaries and given him details of those offences which turned out to be accurate. The appellant had indeed committed those offences, and it was reasonable to accept that Dunne’s evidence of these confessions was true and reliable. However, the circumstances of the suggested confession to murder and the reliability of the informant are such as to raise concerns about it.

In August he gave no detail of the murder which could support its reliability. He also declined to make a statement. Some further information was forthcoming at the discussion on 16 December and the witness statement taken on 18 December added some further material. It remained the position that there was no “smoking gun” even by that stage, by which we mean an accurate detail which no-one but the killer could know. There were also differences between the accounts of the two conversations given in August and December which are objectively a cause for concern about their reliability.

The importance of Dunne’s evidence to the case against the appellant was very high. We have held at [88] that without it there was no case for him to answer, or at least that the case on that basis was very weak. It was the decisive evidence. The witness, Dunne, was dead and could not be cross-examined and never had been. It is not only the lack of cross-examination which matters: he had never been examined in chief either, when his account would have been elicited without leading questions. The admission of his witness statement assumes that, if called, he would have come up to proof. There is no reason to make this assumption. Had he given evidence during his life, the trial process, with examination in chief and cross-examination, the outcome is actually very unpredictable. Confession evidence of this kind is not unknown and experience suggests that it sometimes fares quite well, and sometimes comes apart at the seams. The fact that Dunne would have been required to accept he was a police informant, and may have been reluctant to do so, is a further area of concern when assessing the extent to which the admission of this evidence by reading the witness statement created an entirely different impression from that which would have resulted from live evidence. His identity might have been protected from the world at large, but not from the appellant who knew who he had shared a cell with in June 1997.

The passage of time between the taking of the statement on 18 December 1997 and the trial in 2023 is also highly relevant. The evidence in it is rendered less convincing because documents which might have shed light on the circumstances in which, and reasons for which, it was taken are missing. Oral evidence on these matters is 26 years old. This affects both the police witnesses and the appellant. If the appellant’s solicitors in 1998 had taken a detailed proof from him about Dunne’s evidence the disadvantage to him would have been reduced, if that proof were still available, but there was no evidence that this had happened. There was an opportunity for it to happen, but this is not quite the same thing. These disadvantages were directly caused by the decision of the CPS in 1998 that the witness should not be called at the first trial. This is a factor which falls for consideration under section 78 of PACE, rather than under section 125. We have decided to dispose of this appeal on the assumption that the evidence was properly admitted, so we do not need to say anything more about this change of position, except that the comparison with what would otherwise have happened at the first trial and what actually happened at the second trial demonstrates that the decision, and the passage of time shows how unconvincing this untested evidence was by 2023.

As BOB decides, the section 125 issue is best decided at a point when a judge can assess the safety of any conviction in the light of the tailored direction which will be given to the jury if the evidence remains before them. For the reasons we have already given, we do not think that the directions which the judge gave to this jury were enough to ensure that the conviction is safe notwithstanding the unconvincing nature of the evidence of Dunne and its importance to the case against the appellant.

This conclusion is reinforced by the treatment of the evidence of Adam Plummer which was relied upon at trial, and on this appeal, as evidence of another confession by the appellant, this time to his mother. The treatment of this evidence at trial was not satisfactory for the reasons we have explained. If the inference was drawn by the jury that they were sure that this confession was made, it was a sufficient basis for conviction. No statement had ever been made by the person to whom the confession was allegedly made and she was dead by the time of the trial and unable to explain whether she had said what Adam Plummer recalled and, if so, when she had said that and where she got the information about the killing which she passed on to him. The conversation only had any evidential significance if Adam Plummer was right in saying not only what was said but also in identifying the occasion when it was said. The absence of the mother’s account of these matters renders the evidence unconvincing. The absence of any hearsay direction about it means that the jury was never warned about the dangers of relying on it. It was deployed to great effect in cross-examination and in the prosecution closing speech and the evidence was fully summed up by the judge. The jury asked some questions about Adam Plummer’s evidence and it may be that it played a significant role in their decision. In these circumstances a judge reflecting on the matter under section 125 would have been driven, in our judgment, to find that it may render a conviction unsafe. There is no ground of appeal is before us on this question.

There may be no logical connection between the two alleged confessions, but they were deployed together in Mr. Price’s questioning of the appellant set out above:

“You see, in addition to confessing to Christopher Dunn, you confessed to your own mother, didn’t you?”