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Martin Foran - Second Conviction Quashed After 36 Year Fight

Lord Justice Pitchford handed down the judgement this morning:

The CCRC Reference: On 12 June 1978 Martin Patrick Foran faced trial before HHJ Ross QC at Birmingham Crown Court upon an indictment charging him with six offences. In count 1 he was charged with burglary of a garage at 29 St Chad's Road, Rubery between 1 and 4 May 1977 and theft of a wallet and its contents. In the alternative, in count 2 he was charged with handling the wallet and contents. In count 3 he was charged that on 26 September 1977 he robbed Charles Apechis of 2,800 in cash and other property. In count 4 he was charged that on 8 October 1977 he robbed Natwarlal Trikain of a handbag and 35. In count 5 he was charged that on 13 October 1977 he robbed Richard Alexander Rice of a quantity of jewellery and watches, a cash box and cash. In count 6 he was charged that on 13 October 1977 he robbed Ian Lawrence Holmes of a watch, a wallet and its contents. In counts 3 - 6 Mr Foran was jointly charged with Errol Alexander Campbell. Campbell pleaded guilty to those counts and trial proceeded against Mr Foran alone.

During the course of the trial the judge withdrew count 1 from the jury and directed an acquittal. On 21 June 1978 the jury returned verdicts of not guilty upon count 2 and guilty upon counts 3 - 6 inclusive. Mr Foran was sentenced to 10 years imprisonment concurrent upon each count.

He appealed against conviction. On 11 March 1980, in a judgment a transcript of which is no longer available, the full court refused the applicant's renewed application for leave to appeal. In 1981 an effort was made to persuade the Home Secretary to refer the convictions back to the Court of Appeal. That effort was unsuccessful. In July 1982 Mr Foran conducted a roof top protest at HMP Nottingham. His case was raised in the House of Commons on 20 July 1982. The minister of state at the Home Office, Mr Patrick Mayhew QC, who had a copy of the court's judgment in his possession, reminded the House that he could not usurp the functions of the jury and the Court of Appeal. There was no new evidence that cast doubt upon the safety of the verdicts which, as Donaldson LJ had remarked in his judgment on behalf of the court, depended upon confessions by Mr Foran to the offences alleged.

On 7 January 2013 Mr Foran made an application to the Criminal Cases Review Commission ("the Commission" or "the CCRC") for a review of his case. On 9 January 2014 the Commission referred the convictions to this court under section 9 of the Criminal Appeal Act 1995. Henceforth we shall refer to Mr Foran as the appellant. The grounds for referral which we paraphrase are that further information has come to light that casts down upon the prosecution case proved by police officers that the appellant had confessed to the count 3 - 6 offences; accordingly, that the verdicts were unsafe.

On 16 April 2013 this court (Leveson LJ, Mitting and Males JJ) allowed the appellant's appeal against a quite separate conviction at Birmingham Crown Court on 3 May 1985 on the ground that police evidence was tainted (Foran [2013] EWCA Crim 437). However, the evidence under scrutiny in that case concerned an offence which took place in September 1984 and concerned police officers none of whom were involved in the investigation which is the subject of the present appeal.

Discussion and conclusion
It is accepted by the Commission that there is no direct evidence of malpractice against Detective Constable Davies, Detective Sergeant Hancocks, Detective Constable Bawden and Detective Sergeant Whelan, all of whom gave pivotal evidence in the trial of the appellant in 1978. However, it is submitted that there was implied in the judgment of the Court of Appeal in McIlkenny in 1991 a finding that the investigating team, including Detective Constable Davies, was corrupt or, if not corrupt, at least tainted to a degree that puts the credibility of Detective Constable Davies' evidence on oath in serious doubt. We have already expressed our reasons for rejecting this argument. While we accept that the taint of institutional corruption may affect the credit of an individual witness against whom no specific finding has been made, we note that this was an investigation in 1977 and that on no occasion since has Detective Constable Davies been implicated in corrupt practice. It is argued that the subsequent disciplinary findings against Detective Chief Inspector Taylor are important because, had they preceded the appellant's trial, they would have provided ammunition for cross-examination as to credit. He was also tainted subsequently by his involvement in the trial of Twitchell and thus susceptible to accusations of corruption in his dealings with suspects. In 1977 Detective Chief Inspector Taylor was the recently appointed head of the Serious Crime Squad. His leadership role would, it is submitted, have had a significant impact upon the team whom he was directing and, therefore, the truth of the evidence that the appellant made the disputed admissions on 24 October 1977 and on 3 April 1978. He was, in particular, Detective Sergeant Hancocks' senior officer. Detective Sergeant Jennings was, it is further submitted, implicated in the allegedly false evidence given at the trial of Keith Twitchell, and the taint on his credibility affects the value of his evidence that the appellant made admissions on 3 April 1978.

The respondent, having considered the material available, concedes that this court could properly conclude that the verdicts upon counts 3 and 4 are unsafe. There is a sufficient taint upon the credibility of Detective Constable Davies to cast doubt upon the accuracy of his evidence. There was upon the relevant issues evidence supportive of the appellant from Prison Officer Law. There was no direct or circumstantial evidence to place the appellant at either of the robberies; therefore, there was no supporting evidence from any other source. Charles Apechis (count 3) gave a description of his attacker that bore no resemblance to the appellant and subsequently, not having been called at trial, made a statement absolving the appellant. We accept Mr Rees QC's submission that no specific findings were made against Detective Chief Inspector Taylor and Detective Sergeant Jennings in the appeal of Twitchell. The ground upon which the court allowed the appeal was that had the material been available for cross-examination the effect would have been devastating. We have posed the question: why would cross-examination have been devastating? In our judgment, the material available for cross-examination of Detective Chief Inspector Taylor and Detective Sergeant Brown in Twitchell was so damaging to the credibility of those officers that there was serious doubt whether the jury would have been prepared to accept them as witnesses of truth. That being the case, Detective Sergeant Jennings' own evidence would have suffered the same taint since he was supporting the thrust of their evidence. We consider that, in the absence of any other admissible evidence implicating the appellant in the robberies charged in counts 3 and 4, any legitimate attack upon the credit of either Detective Constable Davies or Detective Sergeant Jennings would affect the safety of the verdicts upon those counts. The fact that we have found that there was nothing in the background or later events to cast doubt on the honesty of Detective Constable Davies does not determine the question whether the verdicts on these counts were unsafe. We recognise that our reasoning differs from that of the respondent. In our judgment, it is enough that there is material on which Detective Sergeant Jennings could legitimately have been cross-examined to effect. We have no way of knowing how that would have affected the jury's decision upon the reliability of the confession allegedly made at HMP Leicester on 3 April 1978 but we are clear that the challenge would have cast renewed light on its reliability. We are persuaded that we cannot be sure that the verdicts on those counts are safe. We consider a further route to the same conclusion in the following paragraphs.

We turn to counts 5 and 6. While, some three to four years later, Detective Chief Inspector Taylor was accused and convicted of disciplinary offences which went to his honesty and therefore affected the fairness of the trial of Mr Twitchell in 1982, there is no evidence of malpractice by him before the investigation of Mr Twitchell's case in November 1980, fully three years after the investigation in the appellant's case. However, the appeals of OToole, Murphy and Wilcox all concerned the investigation of robbery by the Serious Crime Squad in 1977 and in Twitchell the allegation was that Detective Chief Inspector Taylor had falsely placed himself in an interview in order to give dishonest support to the evidence of other officers.

Detective Sergeant Hancocks, admittedly an untainted witness, was able to produce a document at trial that has the hallmarks of contemporaneity and was consistent with the evidence of the progression of the critical interview leading, as he said, to the appellant's admissions. It was inconsistent with the appellant's complete denial that he had given any information to the officer about robberies or Ireland. In our judgment, this document must have been central to the jury's consideration of counts 5 and 6. On the other hand, the legitimate point was made by Ms Nicholls in argument that no contemporaneous note of admissions from the appellant to the Rice Jewellery robbery was made by Mr Hancocks even though, according to the officer, he immediately went on to make them. Furthermore, it did not follow that because the jury accepted the handwritten note as genuine they were bound to accept the critical evidence of admissions. There was open to the jury the conclusion that the appellant did attempt to strike a bargain by giving information about others but may not have made any admission of his own guilt. The evidence of Detective Sergeant Whelan and Detective Constable Bawden, also untainted witnesses who did not serve in the Serious Crime Squad, provided, as we have said, significant support for Detective Sergeant Hancocks' evidence, since Whelan was hardly going to ask for confirmation from the appellant that he had made admissions unless Hancocks had told him that he had. That, however, does not resolve the question whether the admissions had in fact been made to Detective Sergeant Hancocks before Detective Sergeant Whelan arrived at the police station. If by reason of an attack on the credibility of Detective Chief Inspector Taylor the jury had doubts about the truthfulness of the evidence of Detective Sergeant Hancocks it seems to us that a ripple effect would inevitably follow.

The question we have to resolve is whether the specific material available for cross examination of Detective Chief Inspector Taylor and the general taint upon the leadership of the Serious Crime Squad in 1977 is sufficient to place the confession evidence in doubt. We consider that cross examination of Detective Chief Inspector Taylor would have had some impact upon the issue facing the jury. That fact was bound to place the evidence of officers of the Serious Crime Squad under pressure, particularly the evidence of Detective Sergeant Hancocks and Detective Constable Davies. Although we readily accept that it is not possible to assess with any certainty what the outcome would have been, we are clear that the jury would not have approached the evidence in categories each one hermetically sealed from the next. Cross-examination of the head of the Serious Crime Squad as to the honesty and reliability of the investigation may well have had the effect of causing the jury to examine with increased scepticism the issue as to how the injuries to the appellant had been caused. It may also have had an effect on the jury's assessment of the truth and accuracy of the appellant's alibi evidence. Once the jury were faced by this means with a further challenge to the accuracy and truthfulness of Detective Constable Davies' evidence, there would have been a further ripple effect on their examination of his evidence in support of the confession allegedly made on 3 April 1978, and the evidence of Detective Sergeant Whelan and Detective Constable Bawden supporting the alleged confession of 24 October 1977. While we are quite unable to make findings adverse to the credibility of any officer, we cannot be sure, for the reasons we have stated, that a verdict based upon on these alleged confessions is a safe verdict.

Finally, there was in the case of counts 5 and 6 a positive identification of the appellant by Mr Holmes who said, when attending the identification parade, "I am not mistaken, that is the man". We are conscious of the fact that the full Turnbull direction was not given to the jury but we have read each of the judge's directions to the jury on the subject of identification and, in our view, the judge safely left the issue to the jury with the warning that they should look for supporting evidence. However, since we have concluded that the identification cannot be regarded as reliably supported by the evidence of confession it follows that the convictions upon counts 5 and 6 are unsafe.

For these reasons the appeal is allowed and we quash the appellant's convictions upon counts 3 - 6 inclusive.

Previous Conviction:
Martin Foran fitted up by WMSCS in 1985 Cleared After 28-Year Battle

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Sincere thanks to all those who have supported Shirley and challenged miscarriages of justice on this forum.