COURT DISMISSES APPEAL AGAINST CONVICTION FOR OFFENCE COMMITTED IN 1973
20 October 2015
The Court of Appeal today dismissed an appeal by Myles Christopher O’Hagan against his conviction in May 1974 of causing an explosion. The appeal was brought by way of a reference from the Criminal Cases Review Commission.
The Court heard that on 20 July 1973, two youths walked into an optician’s shop at Queen Street, Londonderry. One left a cardboard box on the floor and told employees “there’s a bomb, you have 10 minutes to get out”. An employee carried the box out of the shop and placed it in an alleyway where it exploded. It was estimated by the Ammunition Technical Officer (“ATO”) to weigh 30 lbs.
At 3.00 am on 14 November 1973, Myles O’Hagan (“the appellant”), then aged 15, was questioned by soldiers and identified himself as “James Jarvis”. He was arrested and handed over to the RUC at 5.20 am. He was interviewed a number of times by police officers. At his first two interviews, he was not accompanied by a solicitor or appropriate adult. In the second interview he confessed to being responsible for placing the bomb at the opticians. The interview notes record a detailed description of the bomb, which tallied with the ATO’s account and an offer by the appellant to draw it (but no drawing was found with the notes). He referred to an associate (who had been interviewed by different police officers and was convicted of the same offence on 6 March 1974). The appellant also admitted to hijacking a coal lorry. He told the Criminal Cases Review Commission (“CCRC”) that he was threatened that if he did not co-operate with the police he would be returned to the Army who wanted him back. He also said that during the interview two officers began writing out a statement answering questions as though they were the appellant.
The third interview took place at 4.40 pm on 14 November in the presence of the appellant’s father following a short five minute visit. During that interview, the appellant signed a detailed confession amplifying some of what was contained in the earlier interview notes. The appellant’s father countersigned the caution and the statement. The appellant told the CCRC that he had been not been allowed to speak to his father, who was drunk when he arrived, on his own but only in the presence of the police officers. He further said his father encouraged him to sign the statement because if he did so he could go home and come back to sort it out in the morning.
The custody record indicated that the appellant was visited by his mother at 5.35 pm that day although his mother has no recollection of that visit. He was then examined by the police doctor who recorded that the appellant stated that he was not ill-treated or abused in any way. He was later visited by his parish priest and then a further visit from his mother. At 7.55 pm, the appellant began his last interview and admitted to carrying out two robberies earlier that night. The appellant told the CCRC that he had no recollection of that interview and that he was astonished that it should record his admission to the two robberies as he had never been charged with any such offences or possession of the firearm which was allegedly used in the hijacking.
The appellant told the CCRC that he was advised by prison inmates to refuse to recognise the court at his trial. He did not remember any contact with a solicitor and on the day of his trial he was not given an opportunity to say anything. The trial judge was only provided with copies of the statement made by the appellant in the presence of his father and would therefore not have been aware that there had been an earlier interview that day in which the appellant allegedly made the same admissions that were then recorded in his police statement.
The Lord Chief Justice, delivering the judgment of the Court of Appeal, noted that the applicable legal principles in cases of this kind had recently been reviewed and said that the task of the court is to consider whether the conviction is unsafe. In this case, the appellant submitted that there were a series of small factors each of which might in isolation be dismissed as causing no real concern but which taken cumulatively led to a significant sense of unease about the safety of the conviction.
Matters connected with the content of the appellant’s statement
The appellant contended that the police officers concocted his statement during interview two. The Lord Chief Justice noted, however, that there was no contemporaneous evidence of any such complaint being made when the appellant spoke to his father, mother or the police doctor at the time of his interviews. The appellant also contended that he was never charged with the offences of hijacking and robbery which he was alleged to have admitted in his statement and said this indicated an invention on the part of the police officers. The Lord Chief Justice said that, given the circumstances of the time, there was nothing unusual about the fact that such matters were not reported to the police. He noted that there would have been no purpose to be served by the police making up these accounts without any information that such events had occurred and presumably in the expectation that no prosecutions would therefore result. The final issue surrounding the appellant’s statement concerned the reference to him drawing a diagram of the bomb. No such diagram was found by the CCRC within the papers. The Lord Chief Justice said there was no indication in the interview notes that the appellant did in fact draw the diagram and that it was perfectly understandable that the interviewers may have wished to continue with the flow of admissions rather than interrupt it to have the diagram completed although it was impossible to be sure of this from the evidence. He noted that it was, however, clear from the papers that the description of the bomb corresponded with the findings of the ATO.
Issues relating to the circumstances surrounding the taking of the statement
The Lord Chief Justice noted that the appellant was arrested at 4.00 am on 14 November 1973 and his second interview concluded at 1.00 pm. He said this raised the question of whether the appellant was unduly tired or exhausted in the course of the interviews but noted there was no suggestion in either of the statements that he made to the CCRC that tiredness played any part in the conduct of the interview. The Lord Chief Justice said there was therefore no evidential base for the suggestion that any admissions at interview were affected by lack of sleep.
The second aspect of this area concerned the absence of a parent or guardian during the second interview. The Lord Chief Justice noted that the Children and Young Persons Act 1968 placed an obligation on the police to take such steps as may be practicable to alert parents to the fact that a child had been arrested but added that the general civil disorder at the time would of itself have created difficulties. He also noted that the appellant had given a false name when arrested. The Lord Chief Justice said it was clear that the appellant’s father was aware of his arrest by the time the second interview concluded. The appellant said his father was drunk when he attended at the police station but this was not supported by the appellant’s mother who said that although he had been drinking he was not drunk.
Inconsistencies with the statement taken by his co-accused
The appellant’s co-accused told the police that the bomb consisted of 10lbs of explosives inside a paper shopping bag. The appellant, however, admitted that it weighed approximately 30lbs and was contained in a cardboard box. This evidence was consistent with the view of the ATO. The co-accused’s statement was not available at the appellant’s trial and was not taken by the police officers who interviewed the appellant. The Lord Chief Justice said that if there was any discrepancy between the descriptions of the bomb it did not in any way reflect on the reliability of the confession statement made by the appellant.
Omissions in the evidence before the trial judge
The deposition papers at the trial only referred to the third interview and the trial judge was not informed that there had been a lengthy earlier interview in which the appellant had made effectively the same admissions without the benefit of the presence of his father. The Lord Chief Justice said that the preparation of papers for trial was quite different in the early 1970s and not all interviews were included as a matter of course in the deposition papers. He said the absence of any discrepancy between the admissions contained in interview two and the written statement of admission in interview three could only have reinforced the trial judge’s view that she should rely upon the statement of admission.
The Court of Appeal accepted the submission that the manner in which the evidence was adduced in this case would have given the trial judge the impression that the admission statement was made at the start of the first interview. It also agreed that the trial judge would have been unaware of the limited rest period available to the appellant before he commenced the first interview in which the interviewing officers recorded his verbal admissions. For the reasons given, however, the Court did not consider that these matters either individually or cumulatively with the other matters raised created any sense of unease about the reliability of the admissions and the safety of the verdict. The appeal was dismissed.