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In the Bristol Crown Court T2011/
Hearing date: 9 May 2012
Regina V CHRISTOPHER JOHN HALLIWELL
RULING ON PRELIMINARY ISSUES: ABUSE OF PROCESS
Introduction
- This defendant was originally charged on two counts of murder in an indictment before Bristol Crown Court. Before he was arraigned the Court heard two applications made on his behalf.
- First, there was an application to exclude the evidence contained in the witness statement of the Senior Investigating Officer (SIO) Detective Superintendent Fulcher, together with associated evidence said to be tainted by the activities of that officer. This evidence related to the period from the moment of the defendant’s removal from his place of arrest, at 11:06am on 24 March 2011, until his arrival at the police station four hours later at 15:15 hours. The basis of this application was that the documents revealed such substantial and irretrievable breaches of PACE and the applicable Codes that the evidence was rendered inadmissible.
- On 4 February 2012, after a four-day hearing on a voire dire and for the reasons subsequently sent to the parties in writing, I granted that application. In respect of Count 2 on the indictment, charging the defendant with the murder of Becky Godden-Edwards, that amounted to a terminating ruling. The Crown did not appeal.
- There was then a further application for the trial on this indictment to be stayed as an abuse of the process. In summary, the basis for this application was that, after the defendant’s arrest, the SIO had called a series of press conferences and briefed the press in detail on what the defendant had told the police and how he had led them to separate locations where two bodies could be found. There was then extensive and repeated national media coverage of the case and of these facts in particular, over a number of weeks, such that it is no longer possible to rectify the damage caused by this publicity and the defendant could not have a fair trial.
- I heard some preliminary submissions on this matter immediately after my ruling on the first; and I subsequently gave directions for the hearing. I heard full argument on 4 April 2012 and reserved judgment in order to consider the substantial volume of documentation submitted by the defendant, based on the media coverage of this case.
- At a hearing on 9 May 2012 I dismissed the application and agreed to send full reasons to the parties in writing. These are the reasons for my decision on that application.
incorporated public engagement, regular liaison with the media and the use of posters and flyers and an on-line social media response.
- Before the defendant’s arrest on 24 March 2011, DSupt Fulcher approved media releases each day between 19 and 24 March, appealing for witnesses and providing or updating information to members of the public about Sian and about the searches being carried out. He held a press conference on 21 March, widely attended by TV, radio and print media personnel.
- This decision to engage the media became an important element of the tactics adopted by the police to try and encourage the defendant to return, under surveillance, to wherever Sian had been taken. The strategy resulted both in an unprecedented response from members of the public, many thousands helping in the search, and a substantial amount of media attention. By the time of the defendant’s arrest, although the plan to encourage him to return to Sian’s location had not worked, the circumstances of Sian’s disappearance and the hunt to find her had attracted considerable publicity, both online and in the local and national print media.
- After his arrest and the events which led to the first application to exclude the evidence relating to them, the defendant was then returned to the police station. He was immediately allowed access to a solicitor who attended and was present at the interviews, all of which were conducted under caution. DSupt Fulcher provided for the solicitor, by
way of partial disclosure, a summary of the earlier interviews he had carried out with the defendant.
- On legal advice the defendant exercised his right to make no comment in answer to all the questions asked of him. DSupt Fulcher said in evidence that it had not occurred to him, after all the defendant had said to him earlier, that he would now “refuse to offer any further comment”.
- At the very end of the earlier interviews, before the defendant was returned to the police station, the defendant had said that he did not want to repeat to others what he had told DSupt Fulcher. He was told that he would have to, but the defendant expressed concerns about the affects of all this on his children. DSupt Fulcher said that he would make arrangements to move his family out of the area, so that they might avoid the harmful effects of publicity concerning the case. Such arrangements were indeed made and implemented. However, the defendant stayed silent in interview and, much to the officer’s annoyance I have no doubt, did not repeat in interview under caution the matters he had earlier relayed to him.
- In his witness statement, adopted as his evidence in chief at the voire dire, DSupt Fulcher said that he was aware that members of the public had videoed the defendant’s arrest in the car park on their mobile phones and had rapidly posted the footage on to social media sites. Various media outlets were seeking clarification as to who had been
have been best advised to explain the circumstances and to mitigate. He accepted that he was both annoyed and frustrated by the defendant’s silence in interview. He expressed the view that he had received “foolish legal advice”.
- Further, although he expressed the view that the public had a right to know what the police had been doing, he admitted when cross- examined that at the time he had not thought through the implications of giving the media all that information. Whilst he had not expressly revealed the identity of the arrested man he accepted that, by the evening of 24 March, the media had worked it out for themselves, given the circumstances of the defendant’s arrest in a busy car park, in the presence of members of the public, and the pictures taken of that arrest being posted on YouTube within a very short time. Certainly, the defendant was named in the media as the man under arrest almost immediately.
- DSupt Fulcher provided details of the further press briefings. At 10: hours on Friday 25 March he held another press conference, the contents of which were once again defined and sanctioned by the Gold Group. His explanation was that there had been huge media interest, with some inaccurate reporting, and he considered it essential to allay public disquiet by providing sufficient detail of what had occurred and what the police knew at that point in time. He therefore explained his knowledge of Sian’s abduction and outlined in broad terms the investigative approach that he had taken. Once again he included in
this briefing the fact that the man who had been arrested had taken him to two separate locations where bodies were to be found. DSupt Fulcher said that he had very little information about the second victim at that stage. He stated, “it was incumbent on me to address legitimate public concerns”.
- On Saturday 26 March, the officer held a further, televised press conference at 15:00 hours, providing a formal briefing agreed once more through the Gold Group for media release, in which he included details of what the defendant had told him regarding the second body. He stated that he did this because media speculation based on coverage without this clarification had resulted in more than 600 calls to the major incident room from concerned relatives of missing people. He stated that he considered it entirely appropriate for him to provide such clarity as he could to allay people’s fears and minimise their false hopes.
- On Sunday 27 March the defendant was charged with the murder of Sian O’Callaghan. At 10:42 on that day DSupt Fulcher sanctioned a joint media release from the Crown Prosecution Service and Wiltshire Police stating that the defendant had been charged with Sian’s murder. At 12:46 hours that day he released information concerning the estimated age of the second person whose body had been found. He also repeated the information given to him by the defendant, that the victim was a young woman taken from the Swindon area between 2003 and 2005. He gave his reason for doing so as wanting to provide
related to the identity of the second victim and her background.
- In the week following this press conference media releases consisted of information relating to Sian’s funeral and a repetition of information concerning Sian and the other victim Becky Godden-Edwards. An entry in the Incident Policy Book for 9 April acknowledged that, since the defendant had been charged with the murder of Sian O’Callaghan, the “matter is sub judice”.
- On 23 May 2011, DSupt Fulcher sanctioned a final media release, indicating that the defendant had been charged that day with the murder of Ms Godden-Edwards.
- In addition to the oral evidence of DSupt Fulcher, and before the hearing of this application on 4 April 2012, the defendant’s representatives analysed in considerable detail the contents of the police press releases and conferences, and of the publicity given to them, in order to reveal the extent of the factual information which had been provided to the media and placed in the public arena after the defendant’s arrest. This was produced as a list of bullet points and a detailed schedule of printed material, identifying the date of each item of information, the relevant newspaper and the source of the information. The schedule covered a period between 21 March and 25 April 2011 and the list ran from 19 March - 23 May 2011.
- For the majority of this information the source was shown to be DSupt
Fulcher. In some cases, on 26 and 28 March, the source is identified only as a “police source” or, more often, just “a source”. Mr Latham’s submission, and there really is no dispute about it, is that most of the material is referred to as fact and all of it must have come from the police, most probably from DSupt Fulcher.
- In The Mirror on Sunday for 27 March the following statement appeared, provided by the Crown Prosecution Service:
“ Simon Brenchley, District Crown Prosecutor for the CPS in Wiltshire, said: I have been working closely with Wiltshire Police and have now authorised them to charge Christopher Halliwell with Sian O’Callaghan’s murder. I must remind the media to take care in reporting events surrounding this case. Mr Halliwell has beencharged with a serious offence and is entitled to a fair trial. It is extremely important that nothing should be reported which could prejudice a fair trial. I will keep liaising closely with the police as their investigation continues. ”
- I have considered all this material carefully, together with the original copy newspapers submitted for me to read. The bullet point list of facts provided to the press after the defendant’s arrest is not in dispute and is as follows:
“• Halliwell had taken the police to the two bodies
- He had admitted killing the two women
- (^) deposition siteSome time after her death he had moved Sian to the eventual
- He gave details of the dates and circumstances of the killing of Godden-Edwards
integrity of the criminal justice system as a result of the deliberate misconduct of the police in briefing the media on what the arrested man had told them. That alone merits a stay of the proceedings. Further, the nature and extent of what was done also means that it is now impossible for this defendant to have a fair trial.
- He submits that the evidence in this case demonstrates bad faith, or at best “serious fault” by the Police and the Crown Prosecution Service. What may have begun with a degree of innocence is said to have developed into conduct amounting to bad faith over the course of 24 hours following the defendant’s arrest; and it resulted in a striking contempt of the rules relating to sub judice material.
- Even if the Court were not satisfied as to bad faith, there was clearly serious and continuing fault here. For the reasons given in the ruling on admissibility there were also found to have been wholesale and irretrievable breaches of PACE and the Codes, together with the possibility of oppression, in circumstances deliberately designed by DSupt Fulcher to persuade this defendant to speak when he did not wish to; and to ensure that the protections to which he was entitled in law were not afforded to him.
- This misconduct was then followed by a cynical and deliberate policy of “drip-feeding” to the national media, from the first press conference on 24 March to the identity of the second body some days later, a whole series of sub judice facts arising from the police investigation, many of
which cannot now be given in evidence at trial, as a result of the first ruling, and which the public had no right to know. The SIO knew the restrictions and his professional obligation and yet he deliberately broke the rules. Only after strenuous objections about the reporting were made by the Defence did the Crown Prosecution Service issue statements to the press urging restraint, to prevent prejudicial publicity. This, however, came far too late.
- After the defendant’s arrest Mr Latham submits that the shutters should have come down. Instead, in a series of announcements to the media, scripted in advance, DSupt Fulcher deliberately placed in the public arena information now ruled inadmissible and when the matter was sub judice. This was wholly improper and unjustified conduct by a senior officer which is, in Mr Latham’s submission, without precedent.
- Drawing a distinction between what happened here and justifiable appeals for public assistance and the supply of information in anodyne terms as to a man’s arrest and the recovery of a body, to which there can be no objection, Mr Latham submitted that DSupt Fulcher deliberately briefed the media on evidence that made out the case against this defendant. The media were given specific information on which the police were intending to rely as part of the Prosecution case.
- He emphasises that the problem here has been created by the Prosecution, not by the media. This is not a case involving inaccurate, speculative or misleading reporting or ill-informed and extravagant
coverage. It is not in dispute that much of the online material can still readily be discovered on the various network sites, including the filmed press conference given by DSupt Fulcher on 24 March.
- As a result of this extensive and graphic coverage, Mr Latham submits that its harmful effects cannot now be rectified by the trial process. He submits that there is no chance that at least one juror will not recall the graphic publicity and the fact that this defendant had led the police to separate locations, where two bodies were to be found, and had admitted two killings, which were both intertwined. Inevitably they will recall the basic facts, even if they no longer recognise the name of the defendant or of the victim. It is therefore inevitable that they will recall facts which have now been ruled inadmissible. There is in this way a real risk, which cannot be removed, that at least one juror would be contaminated by this prejudicial publicity and that the juror would tell the others. The overwhelming prejudice to the defendant is such that no judicial direction could remedy the unfairness that has been caused and ensure that he can have a fair trial. The trial should therefore be stayed.
The Law
- The applicable legal principles are not in dispute and they have been considered and applied on a number of occasions in recent years. My attention was drawn to the passages in Archbold: Criminal Pleading, Evidence and Practice (12th^ edition) , paragraphs 4-87 onwards, in
relation to situations where a stay may be considered necessary to protect the integrity of the criminal justice system, and to the various examples there set out, fairness to the accused being subsumed in that primary consideration in such cases (see Warren v Att.-Gen. of Jersey [2011] 3 WLR 464).
- The question is whether that test is met on the evidence in this case. For a stay to be imposed there must be a connection between the wrongdoing and the trial, such that not only the wrongdoing but also the trial would be an affront to the public conscience ( R v Ahmed and Ahmed [2011] Crim LR 734 CA). The court has to strike a balance between the public interest in ensuring that those who are accused of serious crimes should be tried and the competing public interest in ensuring that executive misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute (see Warren ).
- In relation to adverse publicity and its effect upon the prospects for a fair trial, while it is correct that no authority has addressed the particular facts arising in this case, the principles established in the cases are clear and long-standing, and they are plainly of general application.
- The earlier authorities relating to pre-trial publicity and its effects upon the fairness of a trial were comprehensively considered by the Court of Appeal Criminal Division in R v Stone [2001] EWCA Crim 297. In R v Kray [1969] 53 Cr App R 412, the issue was the extent to which
whether the particular facts mean that the line has been crossed and a fair trial is no longer possible, so that the proceedings should be stayed. In deciding that question he said that the Judge should bear in mind, as Scott Baker J said in Ex parte B , 17 February 1994 (unreported) that:
“Most members of the public do not remember in any detail what they In most cases, one day’s headline news is the next day’s firelighter. have seen on television, heard on the radio or read in the newspaperexcept for a very short period of time.”
- The same point was made by the Divisional Court in the case of Attorney General v ITN and Others [1995] 1 Cr App R 204, where Leggatt LJ said:
“articles, the likelihood is that he no longer would remember it sufficiently During the nine months that passed after anyone had read the offending to prejudice the trial. When the long odds against the potential jurorreading any of the publications is multiplied by the long odds against any reader remembering it, the risk of prejudice is, in my judgment, remote .”
- At paragraphs 47 – 50 Kennedy LJ endorsed the approach taken by Phillips J (as he then was) in considering the adverse publicity which had been accorded to Kevin and Ian Maxwell before they appeared for trial, as follows:
“balance of probabilities that owing to the extent and the nature of ‘No stay should be imposed unless the defendant shows on the the pre-trial publicity he will suffer serious prejudice to the extentthat no fair trial can be held. I would accept this test, so far as it goes, but it remains necessary to identity the essential aspects of afair trial for the purpose of the test. If it were enough to render a trial unfair that publicity has created the risk of prejudice against thedefendant our system of criminal justice would be seriously flawed. There will inevitably be cases where the facts are so dramatic thatalmost everyone in the land will know of them. There will be circumstances when arrests are made of defendants whose guiltwill, or may, appear likely. Intense media coverage may well take
place before a suspect is identified or apprehended. If in the mostnotorious cases defendants were to claim immunity from trial because of the risk of prejudice public confidence in the criminaljustice system would be destroyed.’
- After referring to two authorities the judge continued - ‘Our system of criminal justice is founded on the belief that the jurytrial provides the fairest and most reliable method of determining whether guilt is established. This belief is based on the premisethat the jury will do their best to be true to their oath and to try the case according to the evidence. The ability of the jury to disregardextrinsic material has been repeatedly emphasised by judges of great experience.’
- Phillips J then cited from Kray and concluded – ‘It seems to me that the court will only be justified in staying a trialon the ground of adverse pre-trial publicity if satisfied on a balance of probabilities that if the jury return a verdict of guilty the effect ofthe pre-trial publicity will be such as to render that verdict unsafe and unsatisfactory. In considering this question the court has toconsider the likely length of time the jury will be subject to the trial process, the issues that are likely to arise and the evidence that islikely to be called in order to form a view as to whether it is probable that – try as they may to disregard the pre-trial publicity – the jury’sverdict will be rendered unsafe on account of it.’
- That seems to us to be a valuable approach, …”
- Deciding, after this detailed review, that the Court was satisfied on the balance of probabilities that the effect of pre-trial publicity in Stone’s case, between October 1998 and February 2001, would not render unsafe a guilty verdict delivered in September or October 2001, Kennedy LJ said as follows at paragraph 62:
“publicity, which is the principal target of complaint, and people do forget. The re-trial will not start until nearly three years after the October 1998 Even if they do not forget entirely, the passage of time makes it easier forthem to set aside that which they are told to disregard. …
