Cell confessions: The worrying problem of convictions based on cell confessions reported by other inmates has been in the news this week. On Friday the Court of Appeal gave their reasons for refusing the appeal of Michael Stone. Stone had been convicted for murder largely on the basis of a confession which a man in a neighbouring cell heard transmitted through water pipes. That witness, Mr. Daley, was a heroin addict with a string of convictions and a habit of lying. The Court of Appeal decided that the jury already had evidence that Mr. Daley was a liar, and there was no requirement for the judge to give them a special warning on the reliability of evidence of cell confessions from other inmates.

It is difficult to comment on this particular case yet, because at time of writing the only reports available are summaries in the general press (e.g. The Guardian), and brief summaries such as those on the subscriptions services, Lawtel, and All ER Reporter. According to Lawtel, the Court of Appeal applied the Privy Council decision in the case of Pringle v. R (Jamaica) [2003] UKPC 9. There, a conviction was overturned in part because the judge had failed to give adequate warning about a cell confession. The judgement paints a picture of glaring problems with the evidence of the confession. However, for the decision in R v Stone the relevant point in Pringle is that the Judicial Committee said there was no general rule about what kind of direction is required. In paragraphs 30-31 Lord Hope, giving the judgment of the court, said,

  '30.  ..It is not possible to lay down any fixed rules about the directions which the judge should give to a jury about the evidence which one prisoner gives against another prisoner about things done or said while they are both together in custody. There may be cases where the correct approach will be to treat the prisoner simply as an ordinary witness about whose evidence nothing out of the usual need be said. Examples of that situation are where the prisoner is a witness to an assault on another prisoner or a prison officer or is a witness to a drugs transaction which has taken place in the place where he is being held.

  31.  But a judge must always be alert to the possibility that the evidence by one prisoner against another is tainted by an improper motive.'

This was problem for the appellant in R v. Stone because at trial Mr. Daley had not been cross-examined about his possible motive for giving evidence. He was not awaiting sentence. There had been a suggestion at the appeal that he wanted a favour (of being moved to another wing) from the prison authorities. In the words of the Lawtel summary, ‘S[tone] had not cross-examined D[aley] at the retrial about his motives, and intrinsic concerns about his potential motives were not so great as to require a special direction in the summing-up.

The appellant, Mr Stone, pointed out that Mr Daley had been referred for psychiatric attention. The psychiatric perspective on the evidence of witnesses like Mr Daley’s should perhaps be given more attention. Specifically, it is arguable that a jury, and indeed the judges who make the law, are inclined to overestimate the ability of the jury to understand and assess the motivation and reliability of a witness who is a career criminal, a ‘pathological’ liar, and who has a long history of abusing all sorts of drugs, and who is curently a heroin addict.

There is nothing remarkable in the idea that normal jurors and judges habitually overestimate their ability to assess accurately the evidence given by person who has the kind of problems which Mr. Daley has. Not very long ago, judges and juries consistently overestimated the ability of ordinary jurors to assess accurately identification evidence. However, it was noted by the Criminal Law Revision Committee Eleventh report (Cmnd. 4991) that faulty identification was leading to miscarriages of justice. The Devlin Committee then found that ordinary people do consistently overestimate their ability to identify reliably a person they have seen (and jurors therefore are likely to overestimate the reliability of identification evidence).

Since then, psychologists have undertaken research on the tendency of people to overestimate their own abilities in general. To locate some of this, just search Google for the phrase ‘above average effect’. In particular, when we hear of someone who falls for a conman, most people think, more or less privately, that themselves would have been smart enough not to be conned. Until it happens. Then invariable the victim says, ‘It was a very skilled con.’ (I.e. the conman must have brilliant, otherwise a smart person like would not have fallen for it). So there is nothing surprising in the idea that juries and judges consistently overestimate their ability to assess and understand the motivation and veracity of experienced criminals and of long-term heroin addicts.

The Court of Appeal sometimes appears nervous that if they start allowing the results of psychological research to be used in assessing evidence, or directing juries, the ‘system’ will break down. In R V Turnbull [1977] QB 224, at 228, Lord Widgery said something puzzling:

‘Each of these appeals raises problems relating to evidence of visual identification in criminal cases. Such evidence can bring about miscarriages of justice and has done so in a few cases in recent years. The number of such cases, although small compared with the number in which evidence of visual identification is known to be satisfactory, necessitates steps being taken by the courts, including this court, to reduce that number as far as is possible.’

This is puzzling because it is not quite clear what he meant by cases where ‘evidence of visual identification is known to be satisfactory.’ How was it known to be satisfactory? Because there has been no successful appeal? It seems rather circular. His general thrust, though, is plain, and on the following page he warns the government against making it too hard to secure convictions:

‘A few examples, taken over the whole spectrum of criminal activity, will illustrate what the effects upon the maintenance of law and order would be if any law were enacted that no person could be convicted on evidence of visual identification alone.’

I am not suggesting that courts are deliberately closing their eyes to the findings of science, when directing juries about how to assess testimony – for all I know there is no relevant research which would cast doubt on the ability of jurors to understand the mind of a long-term prisoner who is a heroin addict and a pathological liar. I am suggesting that research should be encouraged, and that very great caution should be exercised. Whilst there is not enough in the reports so far available to comment sensibly on R. v Stone, the topic of cell confessions is so important that it seems a pity the Court of Appeal decided not to certify a question of law for the House of Lords.

On a brighter note the Department of Constitutional Affairs’ announcement of consultation on jury research suggests the government may allow a chink of light into this obscure area. a consultation paper is on the DCA website. It is of course restricted to research on ‘impropriety’ on juries (and the paper also consults on what may constitute impropriety), so it is not relevant to the kind of research which might have assisted Mr. Stone’s appeal, but it is a step in the right direction.

Dr John Birchall - Professional English, Legal English, and Common Law Training