Oliver Campbell’s murder conviction was finally overturned this year, after a 34-year fight for justice. The Court of Appeal (CA) dismissed much of the powerful evidence of Oliver’s innocence, focusing on the narrow issue of the risk that he had confessed falsely.

In the latest of a series of articles on this concerning case, Michael Birnbaum KC who acted for Oliver for more than 25 years, examines the very disturbing failures of the Court of Appeal.

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Oliver, a mentally challenged Black youth then aged 20, was convicted in 1991 of the murder of Hardip Hoondle, the owner an off licence in Hackney, and sentenced to life imprisonment. His co-defendant Eric Samuel, who had pleaded guilty to conspiracy to rob the shop with Oliver, was acquitted of murder and sentenced to five years imprisonment.

The evidence against Oliver was that the shooter had worn his distinctive ‘British Knights’ cap, a flawed identification, and a series of admissions made during police questioning without a solicitor. These were largely inconsistent with the known facts and some were ridiculous. There were major concerns about the fairness and propriety of police questioning.

The jury never heard that, shortly after they were both charged, Eric had told police that Oliver was innocent and had named another man, ‘Harvey’, as the gunman. We now know that Eric later told at least five different people that Oliver was innocent, including his own solicitor before the trial and a BBC reporter who in 2001 covertly recorded the conversation. There were no fingerprints of Oliver’s in the shop. The only hairs found inside the cap could not have been his or Eric’s.

Oliver’s first appeal was dismissed in 1995. In 1999 I was asked to review the case. After doing so and discussing the case with those who had acted for Oliver at his trial and appeal, I concluded that he was probably innocent. In the early noughties that concern became a firm belief, after an investigation by the BBC revealed new evidence strongly in his favour. The BBC broadcast an episode of Rough Justice (‘If the Cap Fits’) about the case in 2001.

Sadly, in 2003 the Criminal Cases Review Commission (CCRC) rejected my first application for referral of Oliver’s convictions back to the Court of Appeal (CA). My application for a Judicial Review of that decision was dismissed in 2005. Many others, including lawyers and journalists, shared my grave concerns about this case. In 2019 after Sandy Martin, Oliver’s then MP, made a powerful speech in the House of Commons arguing that he was innocent, the CCRC agreed to consider a second application.  

In July 2020 with assistance from Glyn Maddocks KC I made that application. In November 2022 the CCRC referred the case back to the CA based on the expert evidence of two psychologists that Oliver’s mental disabilities, which were poorly understood at the time of the trial, may have affected the reliability of his admissions; the changing standards applied both by police and Courts for the protection of the vulnerable, and the exonerations by Eric. At the appeal hearings I sought to rely on 17 grounds of appeal including a number the CCRC had rejected.

The CA allowed the appeal. In ruling the convictions unsafe, it relied almost entirely on the evidence of one clinical psychologist, Dr Alison Beck. The Court reasoned that, had her evidence been available in 1991, the conduct of the trial would have been very different, given changes of practice in the treatment of vulnerable suspects and defendants and the potential availability of an intermediary to assist Oliver at the trial. The Court also accepted that the Judge’s rulings on admissibility might have been different, had the evidence of Dr Beck been available. But it rejected all the other grounds, giving them very short shift – so short that a careful reader of the judgment would not understand why a number of them had even been raised.

After very careful reflection I have decided to publish an article critical of the judgment. In this article:

• I review the evidence and the complex history of the case far more thoroughly and accurately than the CA did in the judgment. My aim is to assist a reader to understand the strength of the case that Oliver is innocent.
• I demonstrate that the CA ignored a mass of evidence of major misconduct by police, including opinions critical of that conduct of four forensic psychologists.
• I argue that its response to almost all the issues raised by the defence was so poor as to call into question the CA’s willingness to deal fully and fairly with historic cases of alleged wrongful conviction.
• I also argue that the CA sought to dilute the important principle established in Derek Bentley[i]. that the fairness of an investigation and trial are to be judged by contemporary standards.

Dr Alison Beck has already published an article dealing with the ‘elephant in the room’ – the impact of Oliver’s experience as Black youth on his ability to deal with an investigation by white officers. Glyn Maddocks has written about the unprecedented application for a retrial of Oliver’s case.

I hope that my text will be clear to non-lawyers. The more technical points are set out in footnotes. The evidence to support some of the arguments is summarised in three Appendices. A brief scan of each Appendix should suffice to enable the reader to understand the scope, detail and cogency of the arguments. Some names have been anonymised.

I am not alone in my concerns about the judgement. Eighteen MPs have signed an Early Day Motion on the case which reads as follows:

‘That this House welcomes the recent decision of the Court of Appeal to overturn the wrongful conviction of Oliver Campbell, who was convicted in 1991 and served over 11 years in prison; pays tribute to the tenacity and dedication of Oliver, his loved ones and his lawyers Michael Birnbaum KC and Glyn Maddocks KC, who have worked tirelessly for more than two decades to clear his name; notes that the Criminal Cases Review Commission was prepared to take a second look at this conviction and, on this occasion, decided correctly to refer this conviction to the Court of Appeal; regrets that the Court of Appeal did not carry out a thorough investigation of the activities and actions of the Metropolitan Police officers in 1990 who were instrumental in obtaining a false confession from Oliver Campbell, which led directly to his conviction; calls on the Government to launch an independent inquiry into the failings that led to this conviction and to publish its findings; and further calls on the Government to review the iniquitous rules governing the payment of compensation to those who have suffered a miscarriage of justice, which were introduced by the coalition Government in 2014, the effect of which is that only those who can prove beyond reasonable doubt that they are not guilty of the crime for which they were convicted can successfully claim compensation following a decision of the Court of Appeal to overturn their conviction.’

The robbery

The robbery took place at about 10:30 pm on 22 July 1990 at the G and H off licence on the Lower Clapton Road. Hardip, son of the deceased, said that a Black youth came in and asked for cigarettes and Tennants lager. He left the shop. A second Black youth then came in and asked Hardip for the price of a bottle of Martell brandy. Hardip told him the price (£13.49) and looked ‘straight into his eyes’. The man stood and looked at him for about 10 seconds. He then saw his assistant Bajinder Singh being bundled into the shop. He activated the alarm, which both sounded and flashed. He saw his father struggling with the second youth near to the front door. They had their arms around each other. The youth had something silver in his hand, which was near to Baldev’s head and neck. Hardip heard a bang and his father fell to the ground. The second man ran out of the shop.

Identification Issues

Oliver was 6 foot 3 inches and of large build. He was 19 at the time of the offence. Descriptions of the gunman by three eyewitnesses suggested that he was a good deal shorter and significantly older than Oliver, possibly as old as 30.

Hardip had a clear view of the attempted robbery. He was standing behind the counter of the well – lit shop, only a few feet from the area where the gunman struggled with his father. In his police statements he said that the first man was about 22 or 23. The second man, who wore a British Knights (‘BK’) cap and shot his father, was ‘possibly slightly older than the first man’ and slightly darker. He was about 5 foot 11, with no point to his chin, dark brown eyes and some stubble on his chin. With police assistance he made a photofit of the second man which included a very good likeness of the elaborate logo on the ‘BK’ Cap. This suggests that Hardip had a good look at him. But he did not pick out Oliver at an identity parade.

Dr Rouse, a pathologist, described Baldev Hoondle as ‘5 foot 9 inches in height slightly obese.’ Had the attacker been 6 foot 3, Hardip would likely have noticed that he was much taller than his father.

Mark Purchase had a much more limited opportunity to see the robbers. Whilst dialling 999, he saw them for a few seconds as they exited the shop, from the other side of the road, about 25 yards away. His descriptions were very generic. Each man was ‘coloured’, 5 foot 10, about 30, medium build and wearing dark clothing. The second man wore a black and white hat and had a slight pot belly.

He did not identify anyone at an identification parade on 16 January 1991, where Oliver stood at position 9. The next day he contacted police and told Officer D that the man at position 9 was the one he had seen ‘carrying the gun as I had previously described’. This made no sense, because in two earlier statements he had said that neither man was carrying anything.

In later statements to police he said that Officer D had said nothing about the suspects.  But in evidence he claimed that on 16 January he (Purchase) had said over and over again that it was number 9 and that Officer D had confirmed that fact. When Officer D gave evidence, he denied that he had ever said anything to that effect prior to the statement of 16 January because so to do would have been improper. However, at the parade for the second man (Eric’s, held two months later, on 18 March 1991) he might have ‘inadvertently confirmed’ that Purchase had identified the police suspect at the first parade. If Officer D was telling the truth, Purchase must have lied to the jury.

In summing up the Judge described Purchase as having said ‘a number of things – not only while he was in the witness box – that were difficult to reconcile with each other’ and as ‘a somewhat excitable person, who at the time he had the opportunity of seeing faces was trying to use his mobile phone.’ He told the jury that he would have stopped the case, had it relied on Purchase’s identification alone.

Alan Gager, another witness, saw the escaping robbers as they ran through a nearby housing estate. They were both black and in their mid-twenties. He described one as about 5 foot 8. He did not suggest that the other was significantly taller.

Police found two items next to a parked car in Arrowe Court, a small road a few hundred yards from the off-licence. One was the ‘BK’ cap. The other was a jacket which Eric’s girlfriend, Jacqueleine Studd, later identified as his. Probably, the two robbers had thrown away items they thought might identify them. Police found another piece of headgear in the off licence: a suede cap, which they believed the unarmed robber had dropped.

Cause of death and injuries

Baldev was dead on arrival at hospital. The cause of death was a gunshot wound to the head. The bullet had entered through the left ear and ended in the region of the brain stem. The shot had been fired from extremely close range, probably with the muzzle of the gun in contact with the ear. Brookes, a firearms expert stated that the recovered bullet bore rifling of a style made by a Smith and Wesson revolver. He could not rule out the possibility of some other type of handgun being used.

Oliver had bought the BK cap at Jubilee Sports in Stratford from Karla Hills on 14 July 1990. It was one of only 188 sold by distributors prior to 22 July. In a statement of 2 August 1990 Karla said that she had sold the hat to a youth she knew as ‘Derek’. He ‘was walking with a limp because he said a car had run over his foot.’

In a statement of 2 December, she said that about a couple of weeks after her first statement he came to the shop and told her: ‘The Old Bill came round to see me about the hat and I told them I ain’t got it. I gave it to a friend.’ They chatted. He told her his name was Oliver Campbell and gave her his number. At trial her account of what he said was different: ‘Someone’s been to see me about the hat I bought. I told them I had given it away.’

The Crimewatch report

On 6 September 1990 the BBC reported the killing on Crimewatch UK giving the location, the time (10:30 pm) and descriptions of the robbers with pictures of the recovered headgear and the shop front, with shutters closed. The reporter described the escape route and showed a plan of it. He said ‘an alarm sounded as the attackers ran into Rowhill Road and Arrowe court. Then we believe they disappeared through Clarence Road and Downs Road into the Nightingale Estate.’ The voiceover said ‘during their flight they dropped two clues’ referring to the two hats.

Arrest and interviews

Oliver was arrested at his home in Manor Road E15 on 30 November 1990 at about 07:00 ‘for the murder of the shopkeeper at G&H Stores on July 22, 1990.’ According to police notes he said ‘I don’t know nothing about no shooting’ and ‘I didn’t shoot the man.’ On the way to the police station, he allegedly said: ‘You mean the Asian man that got shot’… ‘I remember all about it from Crimewatch UK’, and ‘someone grass me up.’

He was first taken to Plaistow Police Station. The custody record shows that on arrival he was processed with extraordinary speed. He arrived at 07:50. He signed that he did not want a solicitor at 08:02. He did not request that anyone be informed of his arrest. A note at 08:02 authorised his detention and stated, ‘taken straight for interview’ and ‘no representations made.’ The first taped interview began at 08:10. There could not have been time for anyone to have explained to him the implications of not having a solicitor.

In a taped interview with Officer A, he described a mate called ‘Derek’ who lived in Dalston. He knew the off-licence and had been in there a couple of times. He did not know where the cap was – ‘I might have given it to someone or dropped it.’ When pressed he said he might have left it at someone’s house. He had last seen it on Crimewatch. Officer A then asked him whether he had dropped the cap in the shop. After some hesitation, he agreed that he had. Officer A’s question was entirely misconceived. He had confused the BK cap, found in Arrowe Court, with the knitted hat found in the off licence. Oliver then admitted having been on the robbery with his mate ‘Derek’. They had stayed together over the weekend. He did not know where Derek had got the gun. Asked to describe it, he said it was black. Officer A asked whether it was ‘dark black.’ He agreed that it was. In fact, the gun, according to Hardip, had been silver.

Oliver was wrong about other significant matters: asked for the time of the offence he said it was about 17:30 ‘or something like that’ when it was about 10:30. He thought his mate had asked for money, although Hardip stated that nothing was said. He said that, after the attack, they had run towards a station. He could not remember which.

But at the end of the interview, he changed his account and denied that he had gone into the shop to rob it. He now claimed that he went there to ‘buy something.’ Officer A did not pursue this vital point. Instead, he asked if Oliver could show police where his mate lived. Oliver agreed, saying it was in Dalston. According to police, at the end of the interview Oliver said: ‘I think the shop was shutting at the time… I think it was late.’ However, this was not recorded on the tape.

At about 10:15 he went with officers on a tour of the area in a police car. A WPC tried to keep a note of what was said.  He allegedly said that he told ‘Alison’ about the shooting, but not all of it. He directed the officers to a number of addresses, including a flat in Fillebrook Road. This is not in Dalston but in Leytonstone about 3–4 miles from the scene of the robbery. Eric had lived at a flat in that road together with Jacqueline Studd. But he and Oliver could not have stayed there on the weekend of the robbery, because it was Jacqueline’s flat, and she had moved out on 13 June, well before the robbery.

On the journey Oliver appeared to lose track of where he was. The WPC ceased to make notes at 10:42. He arrived at Hackney Police Station at 11:15. So there was a gap in the notes on about half an hour, when any conversation went unrecorded. The Hackney Custody Record stated that he did not want a solicitor, or anyone informed of his arrest. At 12:07 he was seen by a doctor, who noted that he had had stitches in his head as a baby and ‘appeared to be of limited intelligence.’ He was fit to be detained.

Officer B went to the charge room to ‘introduce’ himself to Oliver at about 12:20. According to Officer B, Oliver asked ‘how did you find about me I mean who grassed me?’, but he told Oliver that it was best not to talk about it now. Oliver said ‘there’s some girls, a couple of girls. I told them what I’d done in the murder like, was it them?’. Officer B again told him not to say any more. Oliver continued: ‘I need to know how you found out like I done it’. Officer B said ‘it’s a number of things. You’ve said certain things to other people, obviously but that’s not the only reason we found out.’ Oliver asked ‘have you caught my mate?’ Officer B repeated that he should not say more, and he was returned to his cell.

Officer B made a note of this conversation. He also set it out in one of two statements he made, each dated 21 December 1990. But curiously, the other statement makes no reference to it. Nor is the ‘introduction’ referred to on the Hackney ‘Custody Record’, which was supposed to record all contacts with a suspect in custody.

Although the Custody Record stated that Oliver did not want a solicitor, police contacted the firm of Mullinger Banks, who had previously represented him on minor matters. Two of their employees arrived: Ms Eldridge, a young solicitor, and Ms Marshall, a very experienced legal executive. They acted respectively as solicitor and appropriate adult at the interviews conducted on 30 November, which started at 15:20 and went on with breaks until 19:34. The Hackney interviews were conducted by Officer B, who asked the large majority of the questions, and Officer C. When Officer B asked Oliver early in the first taped interview if he knew about the murder, Oliver said ‘I know something about it cos you told me this morning.’ Later in the interview, Officer B read his note of the conversation at 12:20 to Oliver, who responded: ‘I didn’t say nothing like that.’

As their questions reveal, Officers B and C did not know Oliver had agreed to a false suggestion that he had dropped the BK hat in the shop and that he had sought to withdraw his admission of complicity in the robbery at the end of the Plaistow interview. Both were plainly convinced that he, as the owner of the hat, who had admitted presence on the robbery, must have been the shooter. Determined to get him to confess to the shooting they used a number of ploys. First, they exaggerated the strength of the case against him, repeatedly suggesting that they had many witnesses when there was only one, Karla. Secondly, they rang the changes between suggesting that the shooting could only have been deliberate and insinuating that it might have been an accident, suggesting an accidental shooting nine times. Thirdly, Officer B frequently suggested that Oliver’s body language was indicative of his guilt. He made 104 ‘demeanor comments’ on such matters as Oliver shaking his head, looking at the floor, chewing his lip, folding his arms, playing with cups, frowning, smiling, looking worried and twitching his legs. Fourth, Officer B in a number of questions suggested falsely that an answer Oliver had earlier given to him was an admission of guilt.

For the detail supporting these serious allegations see Appendix 1 here, which reflects the relevant written arguments submitted to the Court of Appeal.

At 15:52 on 1 December magistrates granted police a warrant of further detention for 36 hours. Oliver was not interviewed again until 17:25, when a very experienced solicitor, Arthur Mullinger, and a social worker, Ms Yeomans, were present (‘the Mullinger interview’). Whereas Ms Marshall and Mrs Eldridge had made no protest about police interviewing tactics, Mullinger was very critical of them and interrupted Officer B several times to complain about his conduct. For example, he suggested that Officer B was ‘playing staring games’ and attributing conduct to Oliver during the interview which he, Mullinger, could not see. During this interview Oliver answered ‘no comment’ to many questions. Towards the end, Officer B put to Oliver that someone who did not know how to handle a gun ‘could easily misfire it’ and that ‘if someone didn’t know how to handle a gun, they might not even know whether it was loaded.’

Shortly before the interview ended, Officer B said on tape that the social worker had to go in five minutes. He said: ‘we’ll have to get another social worker if we carry on, ok?’. Mullinger asked what would happen later that night. Officer B said ‘it depends on whether we find another social worker.’ The interview ended at 17:56. Mullinger left the station at 18:45-18:50.

The Jackson interview

Mrs Jackson was Oliver’s foster mother. At some time in the early evening police must have asked her to attend the police station. The Custody Record did not indicate how or when this occurred. But she had arrived by 19:30. It recorded:

19:30 DS E to cell to inform subject that stepmother has arrived. Subject states that he wishes to see her.

19:33 Mrs Jackson attends custody suite. Prisoner out of cell for consultation in tape room.

20:00 Returned to cell.

20:27 Mrs Jackson attends custody suite. She is now acting as appropriate adult. She has had care of Oliver since he was 16 and therefore is aware of his problems. Social worker has gone off duty and therefore cannot attend. Fully explained to her responsibilities as an appropriate adult and she states that she understands that. I am willing for this interview to be conducted without a solicitor (signed by Mrs Jackson).

20:32 pm Subject out of cell. I am happy to be interviewed without a solicitor. (signed by Oliver and Mrs Jackson).

Officer B’s statement gave a quite different account. It made no reference at all to the cell visit at 19:30. It described a visit he made to Oliver and Mrs Jackson at 19:55, which was not mentioned at all on the Custody Record.

Officer B said in his statement ‘later Gene (sic) Jackson visited Campbell.’ At 19:55 he entered the interview room and asked if they had had enough time together and she said they had. He ‘explained the requirement for an appropriate adult and Mrs Jackson agreed to accept the responsibility.’ Oliver said: ‘I’d like her to stay.’ She asked if the position was serious. He said that it was. Oliver had made some admissions, had sometimes given no answer and had sometimes chosen to speak. He continued in his statement: ‘I said that if Oliver was convicted it would probably be for murder. Campbell asked if he would go to a psychiatric hospital (he named it) and I said I couldn’t say what would happen.’

Mrs Jackson asked if I thought he was guilty. I said ‘I really believe he shot the man. I don’t think it was murder.’ As the new appropriate adult I explained Oliver’s rights to her and both declined a solicitor. She was aware that he had been represented in prior interviews. Campbell said ‘I want to tell the truth’. I stopped him talking and took him back to his cell. En route he said ‘something inside me is wanting me to tell the truth. It’s like a door opening inside me, I don’t want to lie. I shot the Asian man.’ I told him not to speak and left him in his cell.’

The next taped interview (‘the Jackson interview’) started at 20:38. Oliver said that he wanted to ‘say the truth’. He that he was ‘in the front in the robbery.’ He pulled the gun on the man and shot him. He pulled the trigger by accident. He had hired the gun from someone and had said that he would give it back when he had finished with it. He again described it as black. He thought there was no ammunition in it. He described how he had earlier tried to unload it. His description was said to be consistent with the gun being a revolver. He volunteered a number of details, including how he had practiced with the gun and had carried it in a sort of holster made from two pieces of string under his left arm. Mrs Jackson then broke down. She said that she felt sick and the interview was therefore terminated.

Events of 2 December

Officers B and C sought to interview Oliver again at 10:11. On this occasion both he and Mrs. Jackson said that they wanted a solicitor. The Custody Record recorded a call to Mullinger Banks at 10:40 ‘re legal representation’. Mullinger and Mrs Eldridge came to the police station.

There were two short interviews that day in the presence of Mullinger and Jill Yeomans. In the first, at 14:24, Mullinger protested about what had happened and advised Oliver not to answer further questions. In the second Officer B sought to show Oliver what he referred to as ‘a couple of sets of notes of conversations that weren’t tape recorded.’ Mullinger advised Oliver not to sign any notes. The Custody Record stated that at 12:07 Mullinger wanted to complain about the interview that took place with Mrs Jackson present and that between 12:33 and 12:47 he spoke to an Inspector.

Oliver’s accounts to Mrs Eldridge and in prison

At about 1pm Mrs Eldridge wrote a note of what Oliver told her, while a number of other things were going on (including discussions about calling the duty solicitor and Oliver’s clothing). Points irrelevant to Oliver’s account of the offence are italicised:

‘I’ve told the officers.

£30. I’ve told them about gun.

Richard came with Foster mum.

why did you say it – something inside me

 I gave gun back

I can’t remember were man lives

Mr O’Callaghan Duty  Sol

Trousers – I know about them

 it’s the top

we took some money or something

I think I slipped and pulled the trigger

I thought it was empty’

When she typed up her notes, she commented that ‘it was not clear whether he was making a confession or telling a story as if in a television programme. This needs to be investigated further.’ She later made a statement for the file about events at the police station saying that Oliver had ‘described the contents of the alleged confession.’

It is most unfortunate that the Court of Appeal, in describing this important conversation failed to mention her reservations about whether Oliver was confessing or not, a point I had stressed in both written and oral submissions (see the judgment, paragraph 88).

Oliver’s account to Mrs Eldridge repeated the error in the Jackson interview that the robbers had taken something from the shop. It is also hard to understand how the gun could have been in contact with Baldev’s head if he had ‘slipped and pulled the trigger’.

In Oliver’s prison records there were two entries for 6 December 1990. The first reads:

Ex Brixton

‘I was supposed to have murdered a shopkeeper along with my mate’

‘I was under the London Hospital when I had the brain damage. I was very young’

Probably sub normal

No previous custodial experience

The quotation marks presumably record the exact words used in the passage I have italicised. The phrase ‘I was supposed….’ suggests a denial.

The second passage follows on immediately and reads: ‘Stated that the shooting was an accident, his ‘co-de’ had a gun as well and no-one was supposed to get hurt. He seems quite happy about being here.’

The next page (undated) records under the heading ‘impression’: ‘A simple minded young man: denies the offence, but says he made a statement to the police admitting he did it whilst being held in the police station (Hackney).’

The fourth page records for 19 March 1991 read: ‘Remains adamant regarding his innocence’.

As to the apparent admission recorded on 6 December: it is hard to believe that two men, each armed with a gun, would choose an off-licence as their target, rather than an open bank or Post Office. If both robbers were armed, why did the first man to enter not draw his gun? And why did Oliver not say that both were armed in the Jackson interview?

A detailed analysis of Oliver’s admissions in the Jackson Interview

Oliver said early on in this interview that it was an accident. Asked where the gun came from he said ‘I hired it… someone gave it to me.’ Asked to clarify this he said ‘…I hired it from someone like a shop I meant I hired it from like someone and like they’ve got it back.’ One wonders who would ‘hire’ a gun to someone with Oliver’s limitations or how he would know where to get one. Officer B himself during the Mullinger interview had twice made the same point, saying: ‘It seems very odd to me that someone like you should find yourself in possession of a gun… how could you get yourself a gun, how would someone like you get a gun?.’ This account was also inconsistent with the Plaistow Police Station account that he thought his mate had ‘bought it off someone (inaudible) or he bought it himself.’

Asked to describe the gun, he said: ‘It was a black gun I can’t don’t know if it’s small or bigger.’ Once again, as at Plaistow, he was wrong about the colour of the gun but was now unsure of its size. He said that he could not remember where he got it from, or even what area of London it was hired from. Asked how much he paid, he said ‘not a lot’ and then ‘I think it was about thirty or more, I can’t remember.’ He had hired it to ‘muck about’ with it. Again, this strains belief.

He then said ‘see it went off at the wrong place in the wrong time.’ Asked about the night of the shooting, he said he had met his friend a couple of minutes from the shop: ‘we had a like a dare see who’s gonna be the first to get the most money.’ Officer B commented that this seemed ‘a strange arrangement.’ He asked ‘how did you intend to get this money?’ Oliver said ‘well I’d done, done see, I didn’t know, cos I thought I’d left all that ammunition out like, out of it ‘cept there was one in there’ and ‘…I must have press pressed umm the trigger pointed towards him and went off in his hand’ (emphasis supplied).

He was asked how he unloaded the gun. He first said, ‘I can’t talk you through it.’ Officer B said ‘I can see your waving your arms about and I’ll try to make sense of it.’ Oliver said ‘there’s a trigger underneath where I loaded it or something or I can’t remember where the trigger was…’ ‘you press the button…’ ‘a flap comes down on its side.’ Officer C said that Oliver is ‘motioning pulling a trigger in his left hand.’

When asked how long before the shooting he had hired the gun, he first said ‘a couple of weeks.’ Officer B repeated with obvious incredulity clearly audible about 30 seconds after the start of the 2021 Newsnight item, ‘a couple of weeks?’ and Oliver replied ‘or a couple of months cos I had to have a practice with it’. He then said that he had practiced in the fields ‘anywhere where there’s no one to hear me shooting.’ Asked how many bullets he had, he first said two or three, but then said he had been given a dozen. On the night of the shooting, he had about six left. He had hidden the gun in a field but could not remember where it was – his friend had shown him where to put the gun: ‘I go back there if I want to.’ He then immediately said ‘or was it in the woods?’. All of this suggests that he was making up a story as he went along.

If he planned to use an unloaded gun to frighten the victim why would he need to practice firing it? Indeed, why would he need any bullets? On listening to the tape one can hear that Officer B himself was incredulous of the answers about a ‘couple of weeks’ and ‘practicing.’

Officer B, having been given a number of very unlikely answers, then changed the subject. He asked for the name of his friend. Oliver said: ‘no because he didn’t give his name ‘cos I met him down in the City.’ This could not have been true. If he was on the robbery, he must have been with Eric, whom he knew very well. Officer B then asked him a double leading question, based on the very points about which he had been doubtful (the ‘dare’, the length of time he had had the gun and the ‘practicing’). He also introduced the idea of a ‘bet’:

Officer B: ‘Well, yeah I think we established this yesterday. So you had the gun for some time prior to the night of the shooting. Erm you practiced with it… we get up to the point where you’ve met your friend… and there was some sort of bet.’

Oliver: ‘Bet – something like that, cept er I said what would do if I pulled out ‘I don’t believe you’ve got a gun on someone and he said, and I don’t believe you’ve got a gun on you and I said watch me then go in the shop’.

But this friend, who did not believe Oliver had a gun, must have been the person he had described only moments before as having shown him where to hide it.

Oliver then said that in the shop he told the ‘Asian bloke’ to ‘hand over the money.’ Asked who he was speaking to he said ‘I know it was someone behind the till.’ But Baldev was not behind the till. Hardip was behind the till, and he described Baldev as by the door. This was confirmed by photos showing a trail of blood near the door. Again Hardip had told police that nothing was said during the incident. In evidence he said the same: ‘there was neither talk nor threats. Then there was a bang.’

Officer B asked: ‘you asked one of the Asian men for money… did you have the gun out at that time?’ Oliver replied: ‘Erm no, I had my hand in – inside my… like there.’ This must mean that Oliver, when talking to the Asian man, had his hand inside his outer garment. But Hardip, who was feet away from the gunman across the shop counter, would likely have noticed this.

Oliver said that he had checked that the gun was unloaded before he left the forest (‘the forest or some…’). He thought that it was unloaded at that time. He tied the gun underneath his left arm with two pieces of string. He ‘had to untie’ the string before he took it out. He did not have the gun out when he asked for the money. He took it out when he lost his temper. Officer C pointed out that Oliver was indicating holding the gun in his right hand.

Even on the information available at the trial, this account of a string holster was absurd. It was admitted that Oliver was left-handed. Therefore, he would hardly have tied the gun under his left arm. Again, whether one is right or left-handed, an improvised holster made from two pieces of string is an extraordinary way to carry a weapon. Again, if such a holster had been untied at least one piece of string would very likely have dropped to the ground and been found in the shop. It strains belief that, having lost his temper, he would then take time to untie pieces of string to produce the gun and that Baldev did not take the opportunity to try to get away while he was doing so.

Oliver then said that, when he pulled out the gun he said to his mate ‘watch this.’ His mate had been surprised because ‘he thought I wouldn’t do it but I said I was gonna do it.’ This suggests that there was conversation between Oliver and his mate just before the shooting. But Hardip told police that, when the gunman was struggling with his father, he could not see the other man. Again, the phrase ‘I said I was gonna do it’ was obviously inconsistent with the claim that the shooting was an accident. Indeed, in the space of little more than 12 minutes Oliver went from trying to say it was an accident to virtually admitting a deliberate shooting in anger.

Taking the admissions at Plaistow and Hackney as a whole, there were a few details that were right such as the time of the robbery (though originally he was wrong on that point) and the shooting in the head. He may have been describing a revolver. His description of the gun was assisted and interpreted by the officers. But there were a much larger number of contradictions, inconsistencies with the known facts and (in the Jackson interview) sheer absurdities. He never mentioned that the alarm had sounded and flashed.

Moreover, his account of the gun mechanism may have been physically impossible. Dr Thorpe was a firearms expert instructed by the defence. In his report he wrote:

‘Campbell’s garbled description of the weapon strongly suggests that he is referring to a swing out cylinder revolver rather than any other form of pistol. His description, however, in the writer’s opinion, could have been derived from revolvers seen, for example, in films and television. It is unlikely that a single cartridge could be left in a revolver which was thought to be empty, and then accidentally discharged by pulling the trigger. If a live cartridge were indeed present, in order for it to be hidden from obvious view it would have to be in line with the barrel. Under those circumstances, when the trigger was pulled, the cylinder would rotate to the next and empty chamber before the hammer fell. The hammer would consequently fall onto an empty chamber, and no bullet would be discharged.’ (emphasis added).

The Judge did not refer to this report in summing up. So it is not clear whether the jury knew about it.

Oliver’s claim not to have known the gun was loaded may well have been prompted by Officer B, who had encouraged him to say exactly that.

Evidence that Officer B manipulated events to ensure Mullinger did not attend the last interview on 1 December

First, even though Officer B had told Mullinger that no interview would take place unless another social worker could be found, no attempt was made to contact a social worker that evening. By contrast, the Hackney Custody Record entries for 30 November showed that from 6:30 onwards, as the time approached for 24 hour review of detention, the custody officer had made great efforts over a number of hours to obtain a social worker to act as appropriate adult. He had finally succeeded in obtaining the services of Jill Yeomans to attend the Mullinger interview.

Second, the Custody Record for 1 December did not even mention that a social worker might be needed to attend another interview. The inference must be that Officer B did not give the Custody Officer this vital information. Instead of trying to find another social worker the police got Mrs Jackson to come to the Police Station. Why? There is no police document stating that Oliver wanted to see her, and she had not been mentioned in any interview.

Third, as already noted, the Custody Record stated that at 19:30 Officer B went to the cell ‘to inform subject that stepmother has arrived – subject states that he wishes to see her.’ Why did Officer B not refer to this incident in his notes or in any statement? Was anything else said? It is of great concern that, on the one hand Officer B had no note at all of what took place at 19:30 and, on the other that the Custody Record omits any reference to his claimed conversation with them both at 19:55. The latter omission is all the more remarkable because the Custody Officer did record the return to the cell at 20:00.

Fourth, why was Officer B involved in this process at all? He was an investigator. He should not have been speaking to Oliver in the absence either of his solicitor or the custody officer. Section 35 of The Police and Criminal Evidence Act 1984 (PACE) makes it entirely clear that subject to exceptions irrelevant to this case, an officer involved in the investigation of the offence for which a person is detained must not perform any of the functions of the custody officer.  Why did Officer B not contact Mullinger to explain that plans had changed, that Oliver was now willing to be interviewed without a solicitor and that Mrs Jackson would act as appropriate adult?

Fifth, why was Mrs Jackson allowed to see Oliver alone? At that stage she was not the appropriate adult. Normally the police would not wish a murder suspect to see family members alone before charge. One would at least expect the visit to be supervised.

Sixth, on 2 December Mrs Jackson told Mrs Eldridge that police asked her to go to the Station at about 18:10. She had arrived at about 18:30 and no later than 19:00. So, on her account, police must have asked her to come to the Station while Mullinger was still there. Why? There is a strong inference that Officer B had already decided to try to arrange an interview in Mullinger’s absence, with her as appropriate adult.

Off Record conversation about another suspect, RC

Police records showed that Officer B had interviewed RC, an earlier suspect, on 13 September 1990. Officer B had asked RC about the BK cap and he had said that he might have seen someone wearing it. Officer B had also interviewed a man called Ali who said that RC had a red car.

On 19 December 1990 Oliver told his solicitors that police had told him that RC (whose full name he gave) ‘had seen him wearing the British Knights cap in a red car.’ He was very unclear about this and could not explain who RC was, but said that he had been in prison. At later conferences on 22 January and 16 September 1991 he made further references to RC. In January he added a detail ‘…the police had told him that RC had seen him on a Saturday in a car.’ In September they noted that the RC conversation was ‘following OC’s arrest’ at Hackney Police Station.

Who, apart from Officer B, could have told Oliver about RC at Hackney Police Station? If he did, then why? Why did he not make a note of the conversation or reveal it any of his statements?

Ms Marshall’s note

On 30 November Ms Marshall noted a phone call from Officer B at 1pm that ‘Oliver had been arrested on suspicion of murder. Oliver was not prepared to make a statement without me being present.’ There is no record of any such remark by Oliver in any document we have seen and certainly not in any note made by the officer. It is impossible to reconcile what he said to Ms Marshall with what he claimed Oliver had said to him at 12:20.

Two more concerns about police conduct

I argued during the Appeal that there was evidence of numerous breaches of the Codes of Practice regarding the making and showing to a suspect of notes of untaped conversation and that police appeared to have pursued a policy of talking to suspects about the robbery in police cars[ii]. They had conducted questioning in a police car on five occasions for Oliver, on two for Eric, and also with a man called Riley, who was interviewed at length in a police care about whether he had supplied the gun.

Oliver’s possible sources of information about the murder

These were: Crimewatch UK; the press (he claimed to have seen a report in The Sun which had reported that Baldev had been shot in the head); the police, who spent a substantial amount of time talking to him when there was no tape running and, perhaps most important, Eric who had been on the robbery and who was his friend.  

Eric’s arrest and the “Harvey Admissions”

Eric was arrested on 4 December 1990 at HMP Wandsworth, where he was serving a sentence. He was placed in a police vehicle. The police account was that a Detective Seargent, Officer D ‘struck up a general conversation with Eric s during the journey.’ He asked how police came to see him. He was told because police enquiries led to him. He asked ‘what enquiries?’ Officer A said: ‘let’s just say Oliver Campbell.’ He was shown a copy of The Sun dated 3 December and was told to ‘read that.’ He did so and paused for about three minutes ‘visibly shaken.’ He was then alleged to have said: ‘I‘m no murderer… I couldn’t believe it when he shot him. I didn‘t even know he had a gun. I never went in the shop, it was him who went inside. I was outside when he shot him. I couldn’t fucking believe it…’.

He did not name the gunman during this conversation. His very long pause before answering is, I argue, very significant. Assuming that Oliver was innocent, Eric would have been shocked to learn from The Sun report that he had been charged and might well have been in a quandary as to what to say. Again, because his words on arrest were not recorded on tape, we cannot be sure of exactly what he said.

On 4 and 5 December Eric was interviewed under caution by police on a number of occasions, in the presence of his solicitor. Although he answered some questions about himself, he made no comment to any questions about the offence and, significantly, refused to sign the note of the in-car conversation. He was told that Oliver had admitted to being the gunman. It was repeatedly suggested to him that he did not know that Oliver had a gun. In the first interview Officer A suggested that it was true, as he said on arrest, that he ‘didn’t even know he had a gun’ and that he was ‘horrified’ when it went off and did not anticipate that. Officer B took a similar line in all the interviews. Eric continued to make no comment. He was charged at 17:00 on 5 December and taken back to HMP Wandsworth.

Within two days Eric was trying to contact the police. On 7 December he wrote a letter to D. Supt. WE (the officer in command of the investigation) asking for another interview in the presence of a solicitor as soon as possible. The next day Wandsworth Prison Security Department contacted police to say that Eric wanted to see them urgently. On 14 December Officers B and D went to HMP Wandsworth in response to this message and interviewed him under caution. Officer B said ‘we are here because you have asked us to come.’ Asked if he wanted his solicitor, he responded ‘no I don’t, I want to talk.’ He was cautioned. He said he wanted ‘to make your job easier’ and asked if police had got his letter. He was ‘shocked about the shooting.’ He asked ‘do you think I should speak to my solicitor?’ The officers suggested that he should do so.

The next day Officer D took Eric to HMP Brixton in a police bus for an identification parade. It was aborted because his solicitor did not attend. Officer D took him back to the prison in the rear of the bus. There was a conversation not under caution, with Officer D stating that he said to Eric ‘if you tell me, then anything you say I can give in evidence in Court’. He did not add that Eric need not say anything. This was therefore not a complete caution.

Eric said he wanted to tell Officer D about the murder: ‘I wanted to tell you before, but the solicitor told me not to… Oliver wasn’t there… it was someone else.’ Officer D suggested he should start at the beginning.

He said there were ‘four of us to start with.’ He met Oliver up the West End. Eric saw a friend he knew by face, who was with another man he had never seen before, called Harvey. Harvey ‘wanted to do a rob’ and showed Eric a gun he had in a pouch by his groin. They started driving around looking for somewhere to rob. He (Eric) suggested Hackney. They went to Hackney. He went into a lot of off licences ‘on the way up to the one we did.’ He said that Harvey, who was ‘a bad man, crazy man’ had shot the shopkeeper.

Officer D asked if he had gone to his dad’s home. Eric responded: ‘No I didn’t have a key. I was living at my mum’s. We went Clarence Road.’ They had run ‘through the flats’ and then ‘through the Nightingale’ (the Nightingale Estate in Hackney).  They got a train from the station in Rectory Road to Manor House and then went ‘up west’ to a club called ‘The Warren’. It was ‘near the Cambridge, where prostitutes hung out.’ Asked what he was wearing he said ‘a white top and some trousers.’ He had chucked his clothing ‘in a bin’ but could not remember where.

They went to a club in Lewisham to sell the gun. Asked which club it was, he said ‘I don’t know they wouldn’t let us in because we had no money but then they did cause Harvey knows them.’ Harvey sold the gun, but he did not know to whom. Asked about Oliver, he replied: ‘When we was up West this Harvey taxed Ollies hat and he couldn’t do nothing about it so he just went off. That’s how Ollie’s hat got used.’

Officer D asked ‘how can I find out who this Harvey is?’ Eric said that Harvey was wanted. He was ‘from Lewisham or his women are.’ He had done seven years for armed robbery. This was not the first time that Harvey had shot someone. He then said that he thought that Harvey was from Brixton. When they arrived at HMP Wandsworth Eric said ‘I’ll write to you, I’ll get my solicitor and make a confession.’ I refer to these admissions as ‘the Harvey admissions.’

The escape route Eric described is consistent with the evidence of the two witnesses, Purchase and Gager, the finding of the items at Arrowe Court and the route police believed the robbers taken. Despite denying that he knew of a gun on arrest and being encouraged by Officer A and Officer B to maintain that denial, he now admitted to knowing that Harvey had a gun. In so doing he made his position worse. It is also difficult to understand why he should have invented the story of being at a club in Lambeth, where Harvey sold the gun.

This was a coherent and convincing account of the whole evening, far more credible than the admissions Oliver had made, and matching what police knew from other witnesses.

On 21 December Officer D interviewed Eric at Wandsworth in the presence of his solicitor. Officer D reminded him of the conversation on the 15 December when Eric had told him ‘how the robbery and the shooting all came about.’ The solicitor advised him not to answer the question. Officer D read out his notes of the conversation of that day and asked whether he wished to sign them as accurate. The officers then left the room at the request of the solicitor, who, on their return, said that he had advised Eric not to answer.

Perfunctory and biased investigation of the Harvey admissions

From the outset the police denigrated the Harvey admissions as false. In the first  police report the unnamed author referred to them very briefly. He sought to explain them away on the basis that, although his motives were ‘not immediately apparent’, Eric was ‘a man of natural criminal cunning and fully understands the significance of clouding the issues at hand.’ Eric was ‘well able to appreciate the implications of Oliver Campbell’s backwardness and the evident ramifications as to his leading role in the commission of the offence.’  Again, the second police report dismissed Eric’s account to Officer D. He was said to be ‘a man of considerable criminal cunning, who is no doubt only too well aware of the importance of confusing the issues at hand.’

The available papers give no indication that police ever investigated the possibility that ‘Harvey’ was merely a nickname or an alias or that any attempt was made to investigate Eric’s claim that the gun had been sold at a club in Lewisham.

Pre-trial medical evidence: Oliver’s vulnerability and false confession

The defence obtained a number of medical reports dealing with Oliver’s medical history and intellectual capacities. They instructed Dr McKeith, a psychiatrist, and Dr Gisli Gudjonsson, a forensic psychologist, to consider whether there was any evidence that Oliver might have confessed falsely. The science relating to false confessions was then in its infancy. Gudjonsson found that his suggestibility scores were in the middle of the average range for the general population, but lower than those typically found for those of his limited intelligence. On the acquiescence test (measuring a tendency to answer questions affirmatively regardless of content) his score fell well outside the normal range and was similar to the score typically found in those of his low IQ.

He concluded that Oliver’s intellectual functioning was at the bottom of the borderline mentally handicapped range. He did worst on tasks needing sustained concentration. His performance on a verbal memory task was ‘reasonable’ and consistent with his Full Scale IQ of 73. The suggestibility score suggested that he was not unduly responsive to leading questions and interrogative pressure. But the high acquiescence score indicated that he was likely to give affirmative answers regardless of content to questions, unless they were simple. This was not the same as being suggestible. He appeared reasonably able to resist suggestions when the questions were simple enough for him to have understood them.

In a letter to Mullinger of 14 October 1991 Gudjonsson added that Oliver’s explanations in his recent statement to his solicitors about his admissions did not make sense if he was not involved. He was either unable or unwilling to provide satisfactory explanations for them. It was possible to argue that some of the inconsistencies in the interview were due to confusion. It was also arguable that some of the interviews were oppressive because of their manner, but this did not apply to the two critical interviews.

Dr McKeith thought that Oliver might have had difficulty in recalling events four months before the interviews. It might be argued that the police interviewing techniques verged on the oppressive, but he noted that the disclosure took place in the presence of his foster mother. She was well equipped to make a judgement whether he understood and was giving a clear account. A person of limited intellect might develop the habit of concealing that he does not understand and is muddled. He was unable to offer any clear opinion as to whether Oliver’s vulnerability was likely to make him incapable of making reliable statements.

Therefore there was no medical evidence presented to the jury to explain why Oliver might have confessed falsely. Suggestions in both reports that aspects of the police questioning were oppressive were not pursued in cross examination or in submissions at trial. Neither of the expert reports dealt with the content of the interviews or the nature of police questioning. Gudjonsson explained in his recent evidence to the CA he had expected that the solicitors might come back to him to discuss the police conduct towards Oliver, but they did not.

A word on hearsay

The common law rule against ‘hearsay’ is a general rule preventing witnesses from repeating what others have told them. Its basis is that hearsay is not the best form of evidence, because it is not given under oath and cannot be cross-examined. There were a number of exceptions at common law. One was that the Crown could adduce against a defendant their admissions to crime. So the Crown could call Officer D to give evidence of the Harvey admissions against Eric.  But, if they did not call Officer D, then Oliver’s counsel would have no right to call him. This was subject to one exception: if Eric testified and gave evidence inconsistent with the Harvey admissions, then Oliver’s counsel would be entitled to cross examine him about them and to call Officer D to prove them if Eric denied making them.[iii]

The trial

It started at the Old Bailey on 25 November 1991, when Eric pleaded guilty to conspiracy to rob the off licence with Oliver. The Judge dealt with two pretrial applications. The first was an application by Oliver’s counsel, Mr Coonan QC, for a separate trial, because at a joint trial the jury would hear Eric’s admission on arrest which implicated Oliver and that would be very prejudicial to Oliver’s case. Eric’s counsel, Mr Farrington QC, wanted a joint trial because he wanted the jury to be aware that Oliver had admitted to the shooting and Eric’s case was that Oliver was the gunman.

Crown counsel, Mr Boal QC argued for a joint trial because, if the jury accepted that the shooting was an accident, as Oliver had claimed in the Jackson interview, they would have to acquit both men of murder. Hence a joint trial would be in the interests both of Eric and of justice. These arguments were conducted on the basis that the Crown could call Officer D to testify about the Harvey admissions. The Judge ordered a joint trial.

But the jury never heard the Harvey admissions – or that Eric had ever exonerated Oliver. The Crown, decided shortly before opening the case to the jury not to rely on them. They appear to have accepted at a late stage an objection by Mr Farrington that they were inadmissible because they were made after charge and without a full caution being administered. This was a very weak objection since all the evidence showed that Eric had wanted to talk to police after he was charged.

In the event, Eric did not give evidence and so Mr Coonan had no opportunity to cross examine him about what he had said to Officer D. Given that we now know that Eric exonerated Oliver to at least five other people apart from Officer D, the injustice to Oliver is clear.

The objection to police evidence

On 28 November 1991 Mr Coonan objected to any admissions made prior to 15:20 on 30 November 1990, because they were made in the absence of an appropriate adult and to any admissions after 19:55 on 1 December, because they were made in the absence of a solicitor. It follows that he did not object to the manner, style or fairness of the interviews. Nor did he take any point on the absence of a solicitor at Plaistow Police Station.

The Judge had to decide, applying section 76 of PACE, whether or not anything was said or done at Hackney Police Station, which was ‘likely in the circumstances existing at the time to render unreliable any confession’ made by Oliver. The burden of proof was on the Crown. He heard evidence from Officer B, Mullinger and Mrs Jackson. In a lengthy written ruling he accepted that Oliver was mentally handicapped. He summarised Mrs Jackson’s evidence. She said that before the interview began she was under the impression that it was not going to lead to a confession, but was something to do with a hat and that she would not have agreed to take part without a solicitor, had she realised that it would be ‘about other things.’ He found that Officer B was ‘so far as circumstances permitted scrupulously careful to observe the proprieties of the Codes of Practice’ (regulating the treatment and questioning of suspects in custody).

He then considered a ‘contentious area’ – had Mullinger, as he claimed in his evidence,  objected to interviews continuing on the evening of 1 December? Officer B ‘had difficulty in recalling if formal representations had been made to him’.

He said: ‘It was suggested that Sergeant Officer B had agreed that if there was to be a further interview he would telephone Mr Mullinger by 20:30 and what Mr Mullinger said in response was that if Mr Mullinger was required he would contact him by 20:30. It was the officer’s understanding that Mr Mullinger was leaving his home by nine o’clock and that her expected to be telephoned if he were required. E testified that Mr Mullinger was not telephoned because his services were not in the event required.’

The Judge described the recollection of both Mullinger and Officer B as ‘fallible’. There had been ‘no formal agreement in the way that Mr Mullinger asserted in evidence that there was’.  He rejected any suggestion that Officer B had intentionally disregarded the Codes of Practice and found that Mrs Jackson’s recollection was ‘in certain respects incomplete and fallible.’

The Judge said he was satisfied beyond reasonable doubt that, apart from one or two moments where he appeared to have lost concentration, what Oliver was likely to be able to say in answer to questions was ‘reliable’. Any breaches of the PACE Codes of Practice were ‘inevitable’ but ‘inadvertent’ and ‘technical’.  He made a specific finding that ‘Officer B believed and had good reason to believe that Oliver and Mrs Jackson understood the significance of the interview taking place in the absence of a solicitor and consented to that happening.’

Finally, the Judge rejected an application to exclude the interview under PACE S76 (which allows the exclusion of evidence where it would be unfair to admit it) because, although Oliver’s defence was now that he had an alibi, the content of the Jackson interview afforded a possible alternative defence, namely that the shooting was an accident.

The Judge did not refer to any of the manifest absurdities and inconsistencies of Oliver’s admissions. Nor did he suggest that there had been any criticisms of the police conduct of the interviews. Plainly none had been argued. He did not refer to any of the substantial caselaw on the right to a solicitor[iv].

Facts admitted at the trial

No expert evidence was called at the trial about Oliver’s infirmities. But it was formally admitted that he was left-handed and that on past psychological testing his scores were ‘borderline defective.’

The admission continued: ‘There can be no doubt that he suffered severe brain damage (to the left side of the brain more than the right) from his injuries which have caused permanent abnormalities. The most significant consequence is his intellectual function and in this respect he should be regarded as showing significant mental handicap. This is reflected in impaired capacity to process or remember more than the simplest verbal information, severely restricted reasoning skills and poor concentration.’

Oliver’s failure to do himself justice in the witness box

When Oliver started his evidence in the enormous space of Court 1 at the Old Bailey, he spoke so quietly that the Judge could not hear him. He was greatly hampered by his poor memory and difficulty in explaining how he had come to make untrue admissions. He said that some days before the offence his hat had been ‘tached’ (i.e. taken) in the West End when he was with Eric. He had not been on the robbery but could not say where he was at the time. He had tried to tell the police what had happened, but they had pressurised him and called him a liar.

Oliver’s solicitors had gone to great trouble to obtain from him a detailed statement of relevant events, including those in the police station and the reasons why he had confessed falsely. Comparing that statement with what he told the jury (as recounted by the Judge in his summing up), it is clear that he failed to explain important aspects of his defence. For example, he had told the solicitors that he used to walk around Hackney when he stayed with Eric and might have been into the off licence in Lower Clapton Road. But he told the jury, as the Judge reminded them in summing up that, ‘he did not know Hackney and certainly did not know Lower Clapton Road.’

Oliver had said in the statement to his solicitors:

‘I agreed not to have a solicitor present during the interview because I thought it was too late in the evening to ask my solicitors to come to the police station. I thought it would be a waste of time to have a solicitor there… I made up the confession because I felt confused and intimidated by the police. I was confused by their constant questions and frustrated that they believed I had been involved in the shooting. I was also frightened and upset about Jean being present. Something inside me told me to say something and I came out with the wrong thing. I thought if I told them what they wanted to hear, they would leave me alone and I would be able to sort out everything later.’

He said some of this in his evidence – e.g. that he made untrue answers because the officers were asking too many questions. The jury didn’t hear his reason for confessing – that he thought police would leave him alone and he would sort it out later if he did so. This was a key element in his defence, yet he did not mention it.

What he had said on that point in his statement was remarkably like what the experts now agree was the probable reason for his confession.

Oliver was in the witness box for the best part of a day and a half (on 4–5 December). There were breaks for lunch and at the end of the first day. Whether there were any other breaks to enable him to rest was not clear. It was noted that on the 5 December the judge asked him to read aloud from a newspaper cutting and that he could not do so.

The summing up and the Judge’s change of view about the reliability of Oliver’s confession

It is my view that the Judge during the trial made a number of errors both of law and fact in his directions to the jury regarding Oliver’s character; his alleged lies; the accuracy and reliability of his admissions and his possible sources of knowledge of the robbery. But I will focus here on the unfairness of his comments on the evidence.

The Judge in his pre-trial ruling had found the Jackson interview confession to be reliable. But he changed his mind. Both in his sentencing remarks and in his report to the Home Secretary the Judge said that he regarded Eric as the ‘evil genius behind this scheme’ and as the provider of the gun. Oliver had been ‘the pawn in Eric’s scheme.’

Since he had concluded by the end of the trial that that Eric provided the gun, the Judge must have rejected some important aspects of Oliver’s confession, e.g. that he had hired the gun together with a number of bullets, that he had had it for two weeks or two months, had practiced with it and had hidden it in a field or a wood.

Yet in the summing he failed to mention any of the following weaknesses in Oliver’s admissions:

• that Officer A had led him into making a false admission to dropping his cap in the shop
• that he and Eric could not have stayed in Fillebrook Road on the weekend of the robbery
• that his accounts in both the Plaistow and Jackson interviews of events in the shop were at odds with the account of Hardip
• that he had given inconsistent accounts of the time of the robbery in the Plaistow interview
• that the gun was not black as he said both at Plaistow and at Hackney
• that his accounts of who had supplied the gun were wholly inconsistent (was it his accomplice or someone from whom he himself had hired it?)
• that he first said he had had it for two weeks and then for two months
• his inconsistency on which hand he used to hold the gun
• the sheer unlikelihood of the string support for the gun

The Judge said this about Oliver’s account: ‘Why you may ask yourselves if it is Mr Campbell’s true recollection that his hat had been taken from him two days after he had brought it, tached it in the city, why did he not say that during the course of the various questions and answers?’

Perhaps he had forgotten, when he made this comment, the admission that Oliver had ‘an impaired capacity to process or remember more than the simplest verbal information.’

Later the Judge turned to Officer B’s account of what had happened at 19:55. Before reminding the jury of it, he made a long comment, inviting the jury to consider whether this was a ‘great turning point’ where a person had bottled something up and could ‘live with it no longer.’ Was this, he asked, such an occasion when Mrs Jackson, whom Oliver liked, trusted and respected, came to the police station? This comment might have been appropriate in the final speech for the Crown, but certainly not in a summing up. Moreover, it assumed the accuracy of Officer B’s note, which was uncorroborated and which Oliver himself had never seen.

The Judge’s last comment on Oliver’s case was truly devastating: ‘The defendant says that he lost the hat in Leicester Square only two days after he bought it and that by some strange coincidence that hat found its way from him to someone else who may have been involved in this robbery. The prosecution would be entitled to say to you about that, that it is a story so improbable that you should reject it.’

This was very unfair for two reasons. First Oliver had told the jury that Eric was present when his cap was taken. So, there was no ‘coincidence’. if the man who took the cap had been Eric’s accomplice. Secondly, the judge should have avoided any comment on this topic, because he knew that Eric had given Officer D a very similar account in the Harvey admissions, which the prosecution had chosen not to present to the jury.

 

The First Appeal, June 1995

It was argued that the Court should admit the statement of a man named Lloyd Sanderson, who had met Eric while both were in Brixton prison, and a report from consultant psychologist Dr Tunstall.

As to the police interviews: the only ground of appeal related to the decision to admit in evidence the remarks Oliver had allegedly made after arrest, at Plaistow Police station and the cell corridor conversation before the Jackson interview. No point was taken that the Jackson interview itself was inadmissible because no solicitor was present. There was also an argument that the Judge should have warned the jury of the special need for caution when no appropriate adult was present at an interview, relying on PACE 1984 s77.

Lloyd Sanderson made a statement for the purposes of the appeal on 10 June 1994. He had been convicted of murder in December 1991 at the Old Bailey; but his conviction was quashed on appeal, and a conviction for manslaughter was substituted. Sanderson said that whilst on remand in Brixton Prison, he met Eric with whom he became quite friendly. Eric told him that his co-defendant was innocent and got involved because of a hat taken from him in the West End. Eric said police had ‘exploited the guy for being so simple.’  He met the guy later. His name was Oliver Campbell. It made sense to him that Oliver might have confessed to something he hadn’t done. Eric made similar comments to him at the Old Bailey, when they were being tried at the same time.

Olive Tunstall, a consultant psychologist, prepared an 18-page report for the appeal making many important points. On ‘Vineland’ testing Oliver scored very low on communication, due to poor ability to express himself and low level of literacy; his age equivalent being 7 years 10 months. His memory was poor, even in relation to his low level of intelligence. She suggested that, given his level of social functioning he was likely to be ‘extremely vulnerable’ in police interviews. Due to cognitive deficiencies, he was an ‘unreliable informant’ under any circumstances and likely to become increasingly unreliable under pressure.

She concluded that Oliver should have had the support of an appropriate adult at all the interviews. She thought that Mrs Jackson was not capable of fulfilling the role. Though she knew it was a murder case she decided a solicitor was not needed. She told Oliver (on her own account) that he should tell police about ‘the other man’ even though she knew a solicitor had advised him not to answer questions. Given her breakdown during the Jackson interview, she ‘appeared to have been emotionally less capable than Oliver himself of coping with the demands of the police interview.’

In the interviews on 30 November he had had ‘no effective support during several hours of assertive questioning in which he was not infrequently belittled and told he was lying.’ He did much better when he had the support of the solicitor, Mullinger. In the 20:38 interview he appeared to have felt, possibly under the influence of Mrs Jackson, that he ought to answer questions

Dr Tunstall argued that, given his low intelligence and very limited abilities, he might not have understood that he was allowed to say nothing – to remain silent. He might have failed fully to understand the caution and have felt that he ‘ought’ to talk to the police in the presence of his foster mother. She also questioned whether he had either the mental or physical capacity to perform some of the actions attributed to him including acquiring and using a gun.

In its judgment dismissing the appeal the CA referred to the prosecution argument that it was an ‘astonishing coincidence’ that the person who took the hat should be involved in the robbery six days later with Eric. The Court stated that the Harvey admissions had not been called since they were ‘inadmissible’. This was not the case: the Crown could have called them as evidence of what Eric had said to Officer D. It declined to hear Sanderson’s evidence about Eric’s exoneration of Oliver because it was ‘plainly inadmissible’.

The Court appears to have been untroubled by the coincidence that the Harvey admissions were remarkably similar to those alleged by Sanderson and that Eric had exonerated Oliver to two different people, who could not have colluded with one another.

The Court then considered the evidence of Olive Tunstall, citing the opinion of Gudjonsson that Campbell was not particularly suggestible. It said of the experts consulted at the trial: ‘It is plain that these experts had been asked whether there was anything in the Appellant’s mental condition that made him especially vulnerable to pressure in police interviews and they had been unable to say so.’

The Court described Tunstall’s view that Oliver might have felt under pressure to say what he thought the police wanted to hear ‘tentative in the extreme’ and held that her evidence would not have affected the verdict of the jury. The Court did not refer to her views that Oliver may not have understood the police caution and that Mrs Jackson did not fulfil the role of appropriate adult.

The Court appears to have been unaware of the Judge’s view that Eric had supplied the gun. Indeed, the Court thought that Oliver’s admissions about the gun were credible saying (emphasis supplied):

‘It is plain that what he says in the Jackson interview is not given in answer to leading questions and in many respects is detail which had never been discussed before. It is possible that the statement that it was an accident was inspired by questions in previous interviews where he had been invited to say that if he had shot the man it might have been an accident. But there are other matters, notably his description of obtaining the gun, practicing with it, loading and unloading it, which had never been suggested. It is not insignificant that his description is of a revolver and the forensic evidence is that the bullet was fired from a revolver and not a pistol.’

The BBC Investigation and the first application to the CCRC

At the turn of Millenium, the BBC became very interested in the case and investigated it, broadcasting an episode of Rough Justice (‘If the Cap Fits’) in January 2001. The BBC traced Eric, who was then a psychiatric patient in Homerton Hospital. Having spoken to his family and his psychiatrist, the BBC arranged for an independent solicitor, PB, to advise him. In June 2001 PB took a statement from Eric. He did so in June 2001, but Eric would not allow its release. However, PB confirmed to the BBC in two letters that it contained nothing detrimental to Oliver and that Eric was frightened there might be comebacks from the ‘perpetrator’.

It was clear that the police conduct of the interviews had not been examined or analysed either at trial or on appeal. For example: in summing up the Judge said that there was a ‘hint of criticism’ of Officer B for having held an interview without contacting Mullinger. Again, in 1995 the CA said that Mr Coonan ‘did not seek to criticise the police in any way.’

I therefore suggested to the BBC that they instruct a forensic psychologist to consider the way the interviews had been conducted and the risk that Oliver had falsely confessed. They instructed Professor Brian Thomas-Peter. In a report of 24 April 2001 he considered the interviews in great detail and related them to Oliver’s personality and vulnerabilities. He concluded that police had questioned him in an oppressive and domineering way which even a capable person would find intimidating and which someone with Oliver’s limitations might find overwhelming. He described the confession as having features of a ‘poorly constructed fabrication’. In his view, Oliver might have confessed falsely, because he thought that he would be convicted anyway and because the consequences of conviction would be less severe, if he said the shooting was unintentional (‘an instrumental compliant false confession’).

The BBC also obtained important additional evidence from three sources. First a consultant neurologist Dr Legg advised that given Oliver’s disabilities and his left handedness, he could not have constructed the holster under his left armpit. He added ‘I think the prestidigitation required to undo a knot in a piece of string holding up a gun so that it did not fall would be quite beyond him.’

Secondly, a BBC reporter made a covert video recording of a conversation she had with Eric on 28 October 2001 at his family. Eric again admitted that Oliver had not been with him on the robbery and gave an account consistent with ‘the Harvey admissions’.

He said that Oliver had told him before their arrest that his hat had been on the TV and that he told him not to bother with it, but Oliver had not taken his advice. He continued: ‘Yeh he went to this woman and said to this woman that it was his hat on the TV. I told him, why did you say that stupidness? What’s the matter with you? I told you before to keep quiet. What else was she supposed to think?’

He also explained why he did not give evidence: ‘… It’s not doing my case any good saying that I knew about the gunman and all that. And if that was played to the jury, I’d get convicted an all. I told him the truth in the beginning but after a while I shut up, cos it wasn’t… If I didn’t shut up I would get convicted an’ all – of murder.’

This suggests that at the trial Eric went along with the prosecution version of events, as the most likely way to secure his own acquittal of murder.  The phrase ‘I told him the truth in the beginning’ was probably a reference to Officer D.

Although Eric had told the reporter that he would arrange for the release of his statement, that did not happen. At the time he spoke to her he had already written a letter on 22 October to Oliver c/o Gabb and Co (the firm of which solicitor Glyn Maddocks was a partner). In it he had said that he wanted Oliver to phone him and that ‘I am willing to give a statement if it will help you.’ I, having consulted Glyn Maddocks, advised on 6 November that Oliver should not telephone Eric. The purpose of this advice was to avoid the impression that he was trying to influence Eric. I drafted a letter for Oliver to send to Eric explaining this. I have often wondered whether my advice was correct. Perhaps a meeting between Eric and Oliver could have been arranged in the presence of a witness or even a solicitor? Had that been possible, history might have been very different.

The third piece of evidence obtained by the BBC was a further account from Lloyd Sanderson. A different BBC reporter traced Sanderson, and when they met on 8 May 2001 the conversation was tape recorded.  He gave a very detailed account of what Eric had told him. Contrary to what he had said in his statement for the appeal, he said that Eric first exonerated Oliver after he (Eric) had been found not guilty. Sanderson said ‘he felt he could tell me then because he couldn’t be retried.’ He described Eric’s relief when he was acquitted and his saying that he felt sorry for Oliver, who was innocent.

Eric said of Oliver that ‘they used him as a kind of donkey and take the piss out of him.’ Eric said that one day in ‘a group sort of thing’ one of them grabbed his hat which was used for the robbery. It was left at the scene. He said that a ‘streetwise’ man like Eric would not choose Oliver as a partner in crime. As he put it ‘no disrespect to Oliver, but if you was anyone outside whether it be criminal or whatever you wouldn’t have in tow do you know what I mean?’ He thought that Oliver ‘had not realised the enormity of it’ and believed he would go to Court and people would believe him.

The reporter kept in contact with Sanderson. He was concerned that he had been identified as a prisoner serving a sentence at HMP Wakefield (‘a sex offender’s prison’). In an undated letter he said that he had been thinking about his own position. He wanted to help Oliver, but did not want ‘long lasting problems for myself’. He did not want his statement to be used by the BBC. He said ‘I have to say that I can no longer be certain whether Eric did in fact say what I thought he had said.’

In February 2002 Oliver applied to the CCRC for the referral of his case back to the Court of Appeal. The CCRC investigated the case very thoroughly. It arranged for Eric to be advised by another firm of solicitors, SMHS. In February 2003 SHMS informed the CCRC that Eric would neither speak to them nor authorize release of his instructions to his trial solicitors or the statement he had made to PB.

The CCRC asked Thomas-Peter to listen to the interview tapes, which were not available at the time of his first report. In a report of 2 September 2002 he said he had no reason substantially to change his earlier opinion. The tapes revealed in very helpful detail the ‘intensity and relentless characteristic of Officer B’s enquiries’ and showed the emphasis placed on the suggestion, made on numerous occasions, that the matter would be considered differently if the gun went off by accident.

The CCRC then instructed Gudjonsson to review the case. He invited the CCRC to instruct Dr Susan Young of Maudsley Hospital to conduct tests on Oliver. Her report of March 2003 was based on psychometric tests using techniques far more sophisticated than those available over a decade earlier in 1991. Her findings showed a degree of mental disability much greater than had been appreciated at the original trial or on appeal:

‘To summarise Mr Campbell has significant intellectual impairment. Compared with his intellectual abilities, Mr Campbell is significantly impaired  in his immediate and delayed memory functioning, his ability to maintain attention, his speed of processing, verbal fluency and executive functioning. He falls at or below the 1^st percentile compared with the general population on all the tasks that measured these functions. By contrast his verbal and non – verbal reasoning abilities are a relative strength.

Ms Tunstall (1994) reported that his score in the Vineland Adaptive Behavioural Scale indicated that Mr Campbell has significant impairment of social functioning and this is even lower than expected from his limited intellectual abilities. His executive functioning deficits mean he has difficulty with planning, sequencing and organising information both at a cognitive level and more practically in his daily living skills. His problemsolving abilities were poor and he may approach difficulties without prior thought, planning or appropriate strategy formation, resulting in a haphazard approach and making multiple errors. His visual and verbal memory is very poor. Most individuals learn through making errors and repetition, but Mr Campbell is very disadvantaged in this respect and demonstrates very poor learning ability… Mr Campbell does not like to admit his problems and tends to minimise them, nor does he like to have them acknowledged by others.’

Gudjonsson, instructed by the CCRC, then compiled a very lengthy report dated 29 May 2003. He agreed with Thomas-Peter’s criticisms of the police conduct. He accepted that the ‘instrumental compliant false confession’ theory might be correct but had not seen any evidence to support it. He criticised aspects of Thomas-Peter’s approach as based on common sense rather than rigourous psychological theory. It was, he wrote an ‘exceptionally complex case to evaluate.’

The deficits identified by Dr Young were often apparent in the interviews. He stressed Oliver’s need for an appropriate adult at all interviews and expressed his concerns as to the capacity of Mrs Jackson (whom he had interviewed) to act in that capacity. He commented that that Thomas-Peter had not seen Oliver and it was not clear what material he had read. He had provided some ‘possible insights into Oliver’s confession’, but his inferences were ‘highly speculative.’ Oliver was either ‘unable or unwilling’ to explain his admissions.

There was nothing in the recent findings of Dr Young which could satisfactorily explain why he should have made them. He wrote: ‘I do have concerns about inconsistencies, the vagueness of the strange account that Mr Campbell gives in his confession statement in relation to the gun, but I am not satisfied that this by itself necessarily undermines the reliability of his admissions and confession’. (Emphasis supplied).

In a third report of 23 September 1994 Thomas-Peter accepted Gudjonsson’s point that not all his comments were based on psychological theory and that some ‘emerge from common sense’. He argued that the two were not mutually exclusive. He relied on Dr Young’s report and suggested that Gudjonsson had underestimated its significance. He said that his inference about the reason for the confessions was ‘extremely cautious.’ Thomas-Peter concluded that his own theory had ‘too little data to support great confidence in it’ and that the sudden turn of conscience hypothesis has ‘so much to discredit it.’ In his view ‘all that can be firmly concluded from all this is that Campbell’s primary account of the offence may not be reliable.’

Note that the two experts were applying different standards of proof. Thomas-Peter thought his theory was tenable. Gudjonsson did not disagree. But he was unsure that it was correct, given the lack of ‘rigorous psychological theory.’

In preparation for the Judicial Review proceedings I contacted SMHS to find out whether there was anything they could disclose to me consistent with their duty to Eric. Very properly, SMHS took advice from the Law Society. They then wrote to me on 20 July 2005 enclosing a copy of an attendance note of 24 February 2003. The note was disclosed on the basis that it could not be used to suggest what may have been in Eric’s mind, but only to suggest what was in the mind of the SMHS solicitor. The note began: ‘Long discussion with CCRC, without disclosing at any point client’s instructions. Reiterated concerns about Criminal Justice Bill and loss of ‘autrefois acquit’ [v]. Talked in general terms about possible concern of witness about disclosing evidence against actual killer (as opposed to person convicted). Would CCRC offer any protection? It would be helpful in deciding whether or not to make statements, waive confidentiality etc. to have confirmation of the CCRC’s position.’

In other words, SMHS had found a way of properly disclosing to me that Eric was concerned about further prosecution (and possibly his own safety) if he identified the ‘actual killer.’

As already noted, the CCRC declined to refer the case to the Court of Appeal. The attempt to obtain a Judicial Review was unsuccessful. The Administrative Court found that the decision was lawful and within the powers of the CCRC.

Eric’s exonerations of Oliver

We now know that Eric Samuels told at least six different people, on different occasions, that Oliver was innocent. Appendix 2 deals with Eric’s accounts of who shot Mr Hoondle.

Those six people are: Officer D (entry 6), his own solicitor (entry 9), another person at HMP Brixton – perhaps a prison officer – after he had pleaded guilty (entry 12), Lloyd Sanderson in prison and at Court (entry 14), the solicitor PB (entry 18), and a BBC reporter filming covertly in October 2001.

In mid-1994 Officer B, commenting on Sanderson’s statement for the first appeal, dismissed it as ‘hearsay in its most unreliable form’. Clearly his mind was closed to the possibility that Oliver was innocent. He commented on his prison  interview with Eric: ‘I suspect he has simply forgotten the lies he told us before….it was always our belief that Eric invented Harvey to mitigate his role in the crime.’ The ‘fictional Harvey’ was, he observed, ‘far more awesome than Eric himself.’

The credibility of the exonerations

The Crown relied at the recent appeal on Eric’s plea of guilty to conspiring with Oliver and the fact that he had told Mr Farrington QC that this was the truth. They argued that the exonerations were all false. This argument defeats itself: if Eric lied to protect Oliver on at least six occasions then can anything he ever said be relied upon? But if Eric pleaded guilty to conspiring with Oliver as the least bad option and to avoid going into the box (as he in effect told the BBC reporter) then his exonerations are perfectly credible, especially given their detail. If they were all false, then why did he keep making them?  There was a consistent theme that he was afraid of the real killer.    

Relevant changes of law and practice

The legal landscape has changed considerably since 1990 and even since the rejection of the first application to the CCRC. Having been practicing criminal law since 1971, I believe that I am well placed to comment on this. There have been nine major changes.

“PACE” and the Codes

The Police and Criminal Evidence Act and its Codes of Practice were introduced to establish a balance between the rights of the public and the powers of the police. The Act was a response to growing criticism of police conduct, particularly in high-profile cases such as the Birmingham Six and Guildford Four. Codes of Practice under the Act had helped to change police practice for the better. But some old habits die hard. For example, some officers would attempt to keep solicitors out of the police station during interviews. The most common excuse for this was that the solicitor might perhaps inadvertently disclose sensitive information, that might prejudice the investigation. ‘Verballing’ (invention of admissions) was still a problem. Many police officers were negligent in their adherence to the rules about note taking.

Interview techniques

Interview techniques of the sort used in this case, by Officer B in particular, were quite common. They were influenced by the ‘Reid Technique’, developed in the USA, which sought to overcome suspects’ resistance and denials and to move them to admission. It used false evidence ploy (exaggerating or even lying about the strength of the evidence) and minimization tactics (e.g. suggesting that the crime might be accidental)[vi]. More recently UK police have used a very different technique: the PEACE Interview Model. This involves Preparation and Planning; Engage and Explain; Account and Clarification; Closure and Evaluation. It is inconceivable that any officer today would use the sort of tactics Officers B and C adopted in this case.

Hearsay is now admissible at the discretion of the Judge

The Law Commission recognised in a 1997 report Evidence in criminal proceedings: Hearsay and related topics, the strict application of the restrictions on hearsay evidence ‘sometimes prevents defendants from putting cogent evidence of their innocence before the court’. The Criminal Justice Act 2003 introduced a much more rational regime, allowing Judges to consider, when deciding whether to admit a hearsay statement, such factors as its probative value (assuming it to be true); whether other evidence had been, or could be, given on the matter; its importance; the circumstances in which the statement was made and how reliable the maker of the statement appears to be.

Constraints on the right of judges to make comments hostile to the defendant when summing up

At the time of Oliver’s trial some judges thought they were entitled to make strong comment in favour of the Crown (a practice known to criminal barristers as ‘putting the boot in’). Complaints to the CA that the summing up was unfair would succeed only if it was ‘fundamentally unbalanced’. Today Judges may not make comments which are ‘the stuff of advocacy’ and  any expression of the judge’s personal view ‘must be justifiable by reference to the twin touchstones of balance and fairness’ [vii].

Advances in forensic psychology

By the time of the second application to the CCRC the expert understanding of false confessions was far more advanced than it had been, even in 2003. Their frequency and their potential causes, including the manner of the police interrogations, were much better understood.

The right to a solicitor at interviews

Since the first application to the CCRC UK Courts, influenced by decisions of the European Court of Human Rights, have adopted a stricter approach to admissions in the absence of a solicitor. Where the defence object to such admissions, the Crown must now prove that the suspect’s waiver of the right to a solicitor was ‘voluntary, informed and unequivocal’ [viii]. So, in this case the Crown would today have to prove to a judge that Oliver’s waivers of his right to a solicitor at both Plaistow and Hackney police stations met this stringent test in spite of the deficits of intelligence, comprehension and memory established by Dr Young.

Protection for the vulnerable suspect in the police station

The 1985 PACE Code of Practice (in force in 1991) provided much less protection for vulnerable suspects than the current version. The word ‘vulnerable’ did not appear in the 1985 version. Paragraph 11.14 provided that a juvenile or person who was ‘mentally disordered or mentally handicapped’ must not be interviewed in the absence of an appropriate adult. The current 2019 Code at C1.13 creates a presumption that an appropriate adult must be present at all interviews of a ‘vulnerable’ suspect. The term ‘vulnerable’ includes anyone person who, because of a mental health condition or mental disorder may have difficulty communicating effectively about the full implications of their arrest, detention and rights; appears not  to understand the significance of what they are told, of questions they are asked or their replies or appears particularly prone to becoming confused or to providing unreliable, misleading or incriminating information without knowing or wishing to do so.

Protection for the vulnerable defendant in Court

Today ‘special measures’ are routinely applied to protect a vulnerable defendant at the trial. The judge and counsel on both sides will have received special training in dealing with such cases. The judge will hold a ‘ground rules hearing’ to decide which measures are appropriate. These may include frequent adjournments or measures to ensure that the defendant understands the trial process, and the appointment of an intermediary to assist the defendant to communicate with the Court. An intermediary may be used to help the defendant to give evidence.

Modern standards of fairness

The fairness of a trial held many years ago is to be judged by contemporary standards. This was established by the decision in Derek Bentley (deceased) where Lord Bingham said at paragraphs 4 – 5 of the judgement:

 Rarely has the Court been required to review the safety of a conviction recorded over 45 years earlier. In undertaking that task we conclude:

We must apply the substantive law of murder as applicable at the time, disregarding the abolition of constructive malice and the introduction of the defence of diminished responsibility by the Homicide Act 1957.

The liability of a party to a joint enterprise must be determined according to the common law as now understood.

The conduct of the trial and the direction of the jury must be judged according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.

We must judge the safety of the conviction according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.

Where, between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the Court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time. This could cause difficulty in some cases but not, we conclude, in this. Where, however, this Court exercises its power to receive new evidence, it inevitably reviews a case different from that presented to the judge and the jury at the trial.

The second application to the CCRC and the second appeal

The grounds for the second application were quite similar to those advanced on the first. But the second was far stronger, because of the changes to the law above. Mr Maddocks and I made it clear to the CCRC that we did not criticise the conduct of defence counsel:

‘In fairness to defence counsel, whilst we believe that they either missed or did not make a large number of important points, we do not allege incompetence on their part. We say this after a detailed study of all the papers now available including numerous instructions to counsel, advices of counsel and some of counsel’s notes plus discussions and correspondence with leading and junior trial counsel in the early 2000s, and with Mullinger. This was an exceptionally difficult case in which the defence were hampered by Oliver’s very poor memory and the lack of expert evidence as to why he might have confessed falsely. Unlike trial counsel, we have had the opportunity to study the papers over a long period of time and the advantage of studying post-trial reports and material gathered by the BBC.

We have also borne in mind that the rug was pulled from under their feet by the Crown’s very late decision not to call the Harvey admissions. Thus, any tactic they might have planned involving reliance on those admissions was thwarted.

Finally, since many of our legal points are based on changes in law and practice since the trial and the appeal, we could hardly blame trial counsel for having failed to make them. Moreover, counsel did not have the benefit of Gisli Gudjonsson’s more detailed views on the conduct of the interviews and may not have appreciated that his 1991 report was provisional.’

The CCRC’s grounds for the referring the case to the Court of Appeal

The CCRC commissioned further reports from Gudjonsson and another eminent forensic psychologist, Dr Alison Beck. Their reports were very long and detailed but, in a nutshell, they relied on the most recent scientific research. Gudjonsson accepted that in earlier reports he had not properly understood the full extent of Oliver’s vulnerabilities and had focused too narrowly on his suggestibility. He now believed that Oliver’s compliance, which was poorly understood in 1991, was more important.

Dr Beck supported this conclusion. The consensus of the experts now is that Thomas-Peter was probably right in his view that Oliver decided after pressure from police that confessing to an accidental killing was his least bad option.

The reasons for the referral are summarised at the start of this article, but the CCRC rejected many of the points we had raised in the second application relating to police conduct because it thought, wrongly, that they had been raised at the trial and/ or on appeal.

The Crown response

In the UK unlike many other jurisdictions, the fundamental duty of Crown counsel is to be a ‘minister of justice’. This entails as the then Lord Chancellor, Alex Chalk, said in his inaugural speech on 25 May 2003 ‘an overriding duty to preserve and promote the overall fairness of the proceedings – not simply to win at all costs’. The Crown filed a written response to our arguments. To our astonishment, they did not seek an expert report of their own but argued that all the recent reports of Gudjonsson and Beck were inadmissible because they contravened the ‘ultimate issue rule’. This was a rule of the English common law that an expert could not comment on the issue that the jury would have to decide (e.g. whether a confession was true).

They relied on a decision of the Judicial Committee of the Privy Council in a New Zealand case. However, we argued that that case was irrelevant for two reasons: because in New Zealand the ‘ultimate issue rule’ still survived as part of a statutory code and because the English courts had made it clear that in England the rule was now a dead letter [ix].

Had the Crown obtained a report from an expert which agreed substantially with those of Gudjonsson and Beck, they would have had to concede the appeal, thereby saving a great deal of public time and money and sparing Oliver much anguish.

The directions hearing took place on 11 October 2023. I confirmed in open court that I was not seeking to criticise trial defence counsel and gave my detailed reasons. The Court gave leave to appeal on grounds 5 (absence of a solicitor at the crucial interviews), 7 (regarding an appropriate adult), 10 (exclusion of the confessions under PACE), 12 (regarding the recent reports of Gudjonsson and Beck) and 16 (changes in the law and practice for vulnerable defendants) and leave to argue all the others. It ordered the parties to prepare a number of documents. It directed us to provide trial defence counsel with our written arguments and to invite their comments on the facts or on ‘any express or implied criticisms.’

I wrote as directed to trial defence counsel. On 5 November they replied in detail, referring to the case as ‘very difficult and troubling.’ They said that they had not pursued any of the arguments I made against police, save for the failure to contact or wait for Mullinger before the Mullinger interview. They explained that their decision not to do so was made after very careful analysis on a ‘risk benefit basis.’  The lack of any expert evidence to support a defence of oppression was a ‘severe blow’ to the defence and the pre-trial expert evidence of oppression by police was ‘very weak.’

They said that the Judge’s ruling on admissibility was a ‘severe setback.’ As a result the defence had to rely on Oliver himself explaining his case to the jury which, for him, would be a ‘monumental task.’ They confirmed that that he ‘did not come up to proof’ (i.e. failed to tell the jury what he had told his solicitors). They also said that Oliver’s defence was ‘heavily disadvantaged’ by Eric’s decision not to give evidence.

Glyn Maddocks and I were very heartened by this letter, since it confirmed our submissions about the way the defence had been conducted. We decided to pursue all our grounds of appeal in order to present both to the CA and to the public the full picture of the injustice we believed Oliver had suffered.

We were therefore very surprised to read the Court’s opinion in the judgment (at paragraph 121) that many of the grounds ‘ignore the careful explanations and comments of trial defence counsel.’ In fact those comments and explanations supported the analysis of the trial advanced in our arguments and I had relied strongly on them.

The hearing of the appeal

Two days had been set aside (28 – 9 January 2024). I opened the case for a full day on the 28^th. The two experts were called on the morning of the 29^th. Crown counsel did not challenge a word of their evidence. Members of the Court asked a lot of questions. During the afternoon of the 29^th it became clear that we were running out of time and that I had underestimated how long the hearing would take. I apologised for my error. The Court ordered that the case be adjourned. A further hearing was fixed for 21 May. Crown counsel addressed the court and I replied. The hearing concluded at about 14:30.

Failure of the CA to address numerous factual issues

Of course, given its great workload, the CA cannot deal with every point made to it. But here the omissions are so many that one is entitled to say that there was a wholesale failure to consider the points made for Oliver. I can demonstrate this failure in six ways. First, the reader can easily compare the detailed summary in this document of  the many points made for Oliver with the threadbare account of those points in the judgment at paragraphs 2 – 47.

For example, if one quickly scans paragraphs 11 – 20 of the judgement, which summarises the police interviews, it is clear that they do not mention a single point made on behalf of Oliver about the way they were conducted. Again the CA in paragraphs 21 – 22 summarised in only six lines what Eric had told police, omitting any points favourable to Oliver.

Secondly, one can scan the grounds of appeal (set out in the judgment at para. 51) and ask a number of questions about them which it leaves unanswered. For example:

• What were ‘the views expressed in police and probation files as to Oliver’s naivete, trust in others and vulnerability to exploitation’ referred to in Ground 1?
• Why did Ground 2 allege that Mr Purchase ‘lied to the jury’? What were those alleged lies? And who was Gager?
• As to Ground 5: what was the material in ‘relevant documentation including the custody records at both police stations’ going to the issue whether Oliver’s waivers of his right to a solicitor were ‘voluntary informed and unequivocal?’
• What was the ‘powerful evidence in the prosecution papers’ to support the claim in Grounds 6 and 11 that ‘Officer B manipulated events to ensure that the Jackon interview took place in the absence of a solicitor’?
• What was the evidence to support the claim in Ground 7 that Mrs Jackson was ‘plainly unfit’ to perform the role of appropriate adult at Hackney Police Station?
• What was the basis for the very serious allegations made in Ground 9 that there was a policy of holding ‘off-record interviews’, that Officers B and C in the interviews repeatedly exaggerated the strength of the case against Oliver; that they used ‘closed questions’ to suggest that he must have shot Mr Hoondle either deliberately or accidentally and that there were repeated breaches of the Codes of practice on notetaking and the showing of notes?
• Why did Ground 13 state that the Crown decided not to call evidence of the Harvey admissions ‘at a late stage’ and what led them to make that decision?
• Why did Ground 14 refer to Lloyd Sanderson withdrawing his account of what Eric had told him?
• What was the basis for the allegations in Ground 15 that the summing up was unfair?

Obviously a court which does not even mention the factual basis for an argument cannot deal fairly – or even adequately – with that argument in its judgment.

Ignoring a mass of evidence of major misconduct by police

Thirdly, in its judgment, the Court asserted that ‘serious allegations of manipulation, deliberate misleading and bullying made against DS Officer B and other police officers’ were ‘put forward without any evidential foundation.’

This is plainly not the case. The arguments about police conduct. both written and oral, were based on a careful analysis of their own records and (where relevant) those of Mullinger Banks. See, for example the passages above analysing Oliver’s admissions; manipulation by Officer B; the concerns over off record interviews and Appendices 1 and 3.

Appendix 3 (the schedule of expert criticisms of that conduct) was served on 25 February 2023, three days before the appeal hearing commenced so that Court could ‘see at a glance’ the unanimity of expert opinion about of the conduct of the interviews. So, the claim that there was no ‘evidential foundation’ for the criticisms of their conduct is baffling.

Significantly, Crown counsel made no attempt to defend the police conduct or to answer any of the criticisms I and the experts had made. If they had an answer, it would have been their duty as a minister of justice, to argue it in fairness to the police and to assist the Court.

In her recent article for The Justice Gap on Oliver’s case which focused on issues relating to his race Dr Beck put the point in a nutshell:

‘Mr Campbell said, and from reading the police transcripts I concur, the police brought undue pressure to bear on him. In my view, their approach was not acceptable. I believe it was bullying and I wonder why the appeal judges did not acknowledge this. Perhaps they were concerned about opening floodgates for future appeals?’

Failing to consider the coincidence argument

Fourth, unlike the recent case of Andrew Malkinson, Oliver’s is not a case where there was absolute proof of innocence. There was, for example, no exculpatory DNA. But, as I made clear in both my written and oral submissions the argument for Oliver’s innocence relied on a triple coincidence:

• that in the British Knights cap which Oliver had bought only a week before the robbery were two hairs which could not be his or Eric’s
• that the large majority of his admissions are contrary to the known facts and/ or absurd;
• that within a very short time of his own arrest and charge Eric had exonerated Oliver in the ‘Harvey admissions’ which were an entirely credible account of the murder and did so on at least five later occasions.

Putting it another way: if guilty, Oliver was a very lucky man. Although he had shot Hoondle and had only bought the hat a week before the shooting, there were someone else’s hairs in it and for some unknown reason Eric had exonerated him on a number of occasions.

The Court did not address the coincidence argument or the argument that the majority of his admissions were contrary to the known facts and / or absurd. It mentioned only in passing the lack of hairs in the cap (at judgment paragraph 6 ). It gave no detail of any of Eric’s exonerations. At paragraph 124 the Court stated its view that they ‘would carry very little weight.’ But the Court never even summarised them or attempted to analyse their strengths and weaknesses. So, its own view carries, I submit, no weight at all, being unsupported by evidence or reasoning.

Erroneous basis for ignoring criticisms of the Judge’s summing up

Fifth, the CA did not quote any of the Judge’s comments complained of. Indeed paragraph 33 reads as if the summing up was very fair to Oliver, noting that the Judge ‘more than once reminded the jury of the evidence as to the Appellant’s limited intelligence.’ At paragraph 119 it dismissed the complaints about the summing on the basis that ‘they could have been raised in the 1995 appeal.’ That may be so: but in the 1990s judges were allowed far more latitude to make pro-prosecution comments when summing up than is allowed today. So, even if the point had been taken on the first appeal it probably would have been dismissed.

Numerous points brushed aside

Sixth, in that same paragraph the Court summarily dismissed all my points that were not related to the CCRC’s reasons for referral opining that my factual points that were ‘wholly without merit’. It continued:

‘Most of them are wholly or substantially based on jury points which were or could have been made to the jury at the trial. It is, therefore not permissible for the appellant to rely on these points now’ (emphasis supplied).

The Court cited examples – the suggested weakness of the identification evidence; the heights given by Mr Purchase; the absurdity and inaccuracy of the admissions; the oppressive nature of the questioning and the fact that Oliver was predominately left-handed.

I have never heard it suggested that the fact that points might have been taken at trial is a barrier to their being raised on appeal. Of course, if competent trial counsel decided not to take a point at trial, that might be a good reason for doubting its worth. But counsel’s decision cannot be a conclusive objection – they might have made an error of judgment, or may not known all the relevant facts, or may not have seen all the documents which are relied upon at the appeal.

The Court’s pronouncement was also contrary to authority. There is one basis for quashing a conviction – that it is ‘unsafe’ [x]. As Lord Bingham CJ said in Graham  [xi]‘…if, for whatever reason, the court concluded that the appellant was wrongly convicted of the offence charged, or was left in doubt as to whether he was rightly convicted of that offence, then it must of necessity quash the conviction.’ (Emphasis supplied).

Again, if that pronouncement is correct, then an appellant in any future case will be ‘between a rock and a hard place’. On the one hand, according to a very recent decision of the Court of Appeal: ‘The circumstances in which the quality of defence representation has been found by the courts to have led to an unfair trial are exceptionally rare’.[xii] On the other, if its  judgment in Oliver’s case is correct, then it is ‘not permissible’ for an Appellant to rely on a point if Counsel could have made it at the trial.

In other words the failure of defence counsel to take a point would debar the accused from ever relying on it on appeal. With respect, this cannot be right.

Diluting the principle in Bentley?

The principle that the fairness of a trial must be judged according to modern standards has been applied in a number of cases. At paragraph 127 the CA observed that it was:

‘…inclined to accept Mr Price’s submission that an appellant who seeks a long extension of time to advance a ground of appeal based on a change of practice, or on changes in standards of fairness, must satisfy the ‘substantial injustice’ test, as he would have to do if relying on a change in the applicable substantive law. We need not, however, decide that point, because in our view the most important considerations relate not to changes in practice or in standards, but rather to the fresh expert evidence.’

There are a number of powerful objections to this approach. First How long is a ‘long extension of time’? The 1998 judgment in Derek Bentley was delivered 43 years after he was convicted and hanged. The 2021 judgement in the Shrewsbury 24 case related to convictions arising out of strike action in 1972. The convictions in those cases were much older than Oliver’s. Yet in both modern standards were applied in deciding on the fairness of the trial.

Second, Oliver’s case is surely unique. How likely is it that we will see another case were the combination of serious mental disability, unrecognised at the time of trial and appeal, police misconduct and the inability to rely on exculpatory evidence from a co – defendant arguably led to an unjust conviction?

Third, we submitted that the Bentley principles were especially important in old cases where the appellant confessed, but the extent of their mental disabilities had not been properly understood at the time of the trial, citing six cases.  If the CA is now going to apply those principles only in more recent cases, then they will not apply in the very cases where it is most likely that a defendant suffered injustice.^[xiii]

Fourth, the most recent attempt by the higher courts to apply the ‘substantial injustice’ approach is in cases of joint enterprise where the convictions predated a change in the law – has led to decisions on joint enterprise I murder cases which, in the opinion of many, were themselves substantially unjust.

In 2016 the Supreme Court held in Jogee that it was not enough to prove that an alleged party to a murder foresaw that the principal might cause really serious harm to the victim. It was necessary to prove his or her intention to assist the principal. Hopes that many people, widely perceived as having been wrongly convicted of being accessories to murder, would now have their convictions reduced to manslaughter were dashed by the decision of the CA in Johnson and ors. The CA held that such people must establish ‘substantial injustice’. In practice this phrase has been so narrowly interpreted that hardly any pre Jogee convictions for murder were quashed.

So, if a similar approach is now to be followed in historical cases of alleged miscarriage of justice there is a grave risk that the bar will be set so high that very few – if any – will now succeed.

The CA was under no obligation to deal with all the Grounds of Appeal

There were obviously in this case a number of different bases on which the court could quash the convictions. In one of the recent cases concerning the wrongful conviction of postmasters, Hamilton and others v Post Office ltd, the CA confirmed at paragraph 32 that  ‘there is a well-established practice that this court will sometimes allow an appeal against conviction on one ground without deciding, or hearing argument upon, another ground or grounds.’

This principle could have been invoked here. The Court could quite properly have held that, since the Crown had not sought to reply to most of the grounds including some which made serious allegations against police, there was no need to deal with them all. It could have focused on the grounds it considered to be well founded and could thereby have avoided the many errors I have set out above. Holroyde LJ, who presided on Oliver’s appeal, also gave the judgment in Hamilton.

Oliver’s character and personality

Those who knew Oliver as a young man described him in statements to his trial solicitors, Mullinger Banks, as naïve, gentle, loyal to friends, not at all violent and easily manipulated. People who met him after his release from prison in 2002 and police and probation reports while he was on licence painted a similar picture of him.

Senior Prison staff are usually very reluctant to allow the release into open conditions of those convicted of serious crime who continue deny their guilt. Such denial is generally regarded as an indication that they may still be dangerous. Most unusually in Oliver’s case the opposite view was taken.

On 30 March 2000, a psychiatrist at the prison where Oliver was held recommended that he be transferred to open conditions. She noted that ‘some reports go as far as to mention doubts about the validity of the convictions.’ She said that this was ‘rare’ and cited the opinions of two principal psychologists, a consultant psychiatrist and a probation officer. She commented:

‘I will not review further the other numerous similar reports but merely state that they confirm our own impression at interview and reiterate that the writers of these reports were experienced enough and convinced enough not to wish to confront Mr Campbell on his denial of the index offence.’

Of course, there have been numerous cases where people, believed by nearest and dearest to be incapable of committing a serious crime, have been proved by overwhelming evidence to be guilty. This case goes the other way. The belief of so many who know him very well that Oliver ‘couldn’t have done it’ tends to confirm the powerful evidence that he didn’t.

 

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[i] [1998] EWCA Crim 2516

[ii] The effect of C:11.3 – 4 and 12.12 of the 1989 Code was that an accurate record must be made of each interview with a suspect; that records of interviews at any premises must be made during its course, unless that would not be practicable or would interfere with its conduct; that the record must be verbatim or an adequate and accurate summary; that the record, if not made during the course of the interview, must be made as soon as practicable after its completion and that, where the suspect was in a police station, he should be given the opportunity to read it and to sign it as correct or to indicate the respects in which he considered it inaccurate. In Absalom [1989] 88 Cr. App. R  43 the CA stressed the importance of complying with these provisions and in Cox [1993] Cr. App. R 464 held that unrecorded conversations must be kept to a minimum. In Williams 90/3770/X2 it deprecated “social visits” by police to those in custody at a police station. The term “interview” included any discussion between an officer and suspect. See Matthews (1990) Cr. App. R. 43

[iii] Under Criminal Procedure Act 1865 ss 4 -5.  See, for example, Rowson 80 Cr. App. Rep. Beckford and Daley [1991] Crim LR 83

[iv] Zander on PACE (2018 ed) at p302 – 3 analyses ten cases from the late 1980s and the 1990s. The cases are Samuel (supra); Parris (1989) 89 Cr. Ap. R 68; Silcott (Times 9 December 1991; Anderson (1993) Crim. L. R. 447; Hughes (1998) Crim. L. R. 519; Chahal (1992) Crim. L.R. 124; Alladice (1988) 87 Cr. Ap. R; McGovern (supra); Gokan and Hassan  1990 Crim. L. R. 185 and Oliphant (1992) Crim. L. R. 40.  Zander argues that matters courts then emphasised included  would the solicitor have advised silence? (Samuel; Parris, Silcott; Anderson); was the defendant able to cope?; was he of low mental capacity or otherwise unable to look after his own interests?; was he knowledgeable about the police station and his own rights? (Hughes; Chahal; Alladice; McGovern; Gokan and Hassan) and was the defendant likely to confess anyway? (Oliphant; Anderson)

[v] Part 10 of the Criminal Justice Act 2003 (the 2003 Act) reformed the law relating to double jeopardy where new and compelling evidence had become available.

[vi] Such tactics were recommended by a widely read textbook “Police Interrogation. A Handbook for Investigators” (1987) by Walkley.

[vii] Compare Gilbey (unreported) January 26, 1990 cited in Mears (97 Cr. App. R 239) with Faizan [2015] EWCA Crim 1885 at 53 Digby [2020] EWCA Crim 1815; [2021] Crim. L.R. 791

[viii] Saunders [2012] EWCA Crim 1380 at para. 9. See also Salduz v Turkey (2009 E.H.R.R 19 and  Cadder v Her Majesty’s Advocate (Scotland) [2010] UKSC 43

[ix] The New Zealand Case was Pora v The Queen [2015] UKPC 9. For the English authorities see Blackstone at F11.35 and Archbold at 10.23.

[x] The CA has no statutory power to declare an appellant innocent. Its only statutory power is to declare a conviction unsafe. However the Supreme Court has recognised that in exceptional cases the CA may properly recognise that a new or newly discovered fact demonstrates the factual innocence of the appellant. See  R v Adams [2011] UKSC 18, at paragraph 251 per Lord Judge citing Fergus  (1994) 98 Cr App R 313 and Hodgson [2009] EWCA Crim 490

[xi] [1997] 1 Cr. App. R. 302

[xii] See Brooker 2024 EWCA Crim 103 at para 94

[xiii] King [2000] 2 Cr. App. R. 391, at [401G] to [402D], O’Brien Hall and Sherwood [2000] EWCA Crim. 3; Fell [2001] EWCA Crim. 696; Paul Blackburn [2005] EWCA Crim. 1349 at [40] to [43]; Nolan [2006] EWCA Crim 2963 Brown, Wright, McDonald and McCaul [2012] NICA 14