The Birmingham Six Case

By Chen Chongguang Daniel

Interview with Timothy Langdale QC

Interviewer: Daniel Chen

1 February 2012, Clothfairchambers, London

Background Facts

The Birmingham Six were six men who were sentenced to life imprisonment in 1975 for the bombings of pubs in Birmingham. An appeal in 1988 was unsuccessful. On 14 March 1991, their second appeal was allowed1, after the Crown Prosecution service decided not to resist it. The men were then released.

Q: How did you come to be involved in the Birmingham Six Case?

I was a Senior Treasury Counsel at the time, and instructed as part of a team in the late 1980s. There was another Senior Treasury Counsel who was the number one of the team, and I was the number two. We worked on the case for the best part of a year. We were instructed because the police force involved – the Devon and Cornwall police force – had carried out some further scrutiny of the material in the case, and had discovered material which indicated that at least one of the appellant’s confessions was plainly fabricated. They had also carried out further enquiries in relation to scientific evidence relating to traces of explosives which had allegedly been found in the hands of the appellants. The Director of Public Prosecutions instructed us to reconsider the case, because there was a further appeal due to be made to the Court of Appeal, and to act as respondents to the appeal. We were to look at the whole case afresh. Eventually the team decided not to resist the appeal.

Q: What brought about the second appeal?

A certain Dr Frank Skuse, a Home Office Forensic Scientist, had given evidence at the trial. There was another Home Office Forensic Scientist at the Home Office laboratory in Birmingham, who had been so concerned at what he thought may have been flaws in Dr Skuse’s scientific activities. I think he was the person who brought to the attention of the Home Office that the scientific tests might have been very seriously flawed. This would have been conveyed to the Devon and Cornwall Police, and I suspect also to those representing the appellants, so that they should know there was a query. And that may have provoked the appeal itself.

Q: What were the main reasons for the decision of the team not to resist the appeal?

Everything I say is based on possibly faulty recollection, but from what I can remember, there were two significant factors. First, the scientific examination by means of what was called an “ESDA” testrevealed that the confession of one of the appellants, Richard McllKenny, must have been fabricated. I don’t remember whether ESDA tests of the other appellants revealed the same result. But the moment it was clear that McllKenny’s confession had been fabricated, it made it very hard to maintain that the confessions of the other appellants had not also been fabricated. The other crucial point was the evidence that pointed to the fact that the evidence of Dr Skuse was unreliable. He had given evidence at trial that he had found traces of explosives on the hands of more than one appellant. This had been an important piece of evidence on which the conviction of the appellants had been originally based.

Q: What are your general thoughts on Wrongful Conviction?

I don’t see it as a serious problem now because I think people are well aware, and perhaps more aware now as a result of events over a number of years, that wrongful convictions can occur. A particularly significant case was the wrongful conviction, and hanging, of Timothy Evans for murder in the 1960s. In fact, the victim had been murdered by the man in whose house he lived. His wrongful conviction was not caused by police error, but rather because evidence had been given against him by the man who had actually done the murder.

Q: What do you think are the main causes of Wrongful Convictions?

I think the things that cause wrongful convictions are many and various. To analyze what causes a wrongful conviction, you need to know exactly what happened in a case, because we all rely on what we read on the papers, and very often the newspapers report things in a certain way, I don’t mean dishonestly, but they report things in a way which does not actually really explain in enough detail as to why a wrongful conviction came about. To make a proper judgment, you need to look at these cases in detail.

In general, Wrongful Convictions usually involve abuse of power or position, dishonest or inappropriate conduct, by police officers investigating the case, and some of it may also be because of inadequate scientific evidence. In whatever system you have, you are going to get errors made by juries. This is not necessarily their fault. It may be that the evidence presented to them was such that it was not surprising that they were led into error.  I suppose, looking at it from the other side, there may be a number of wrongful acquittals, in the sense that juries can sometimes acquit in circumstances where it is hard to see why they came to that conclusion.

‘I don’t see it as a serious problem now because I think people are well aware, and perhaps more aware now as a result of events over a number of years, that wrongful convictions can occur.’

I personally think that the jury system is the right system to employ in criminal cases – it is the best you can get. There are more plusses than minuses, but one has to bear in mind that if there are wrongful convictions, and I do not think there are that many of them, there would also be what you could describe as wrongful acquittals. I don’t see it as a serious problem, because I think people are well aware, and perhaps more aware now as a result of events over the years, that wrongful convictions can occur.

Q: What impact do you think this, and other Wrongful Convictions, had on the legal landscape?

It is very difficult for me to judge, and my opinion may not be of any significance. But the Birmingham Six case had an impact which was more political in nature. It was used, and I am not saying this in the spirit of criticism, by those who felt that there should be a united Ireland, as being a demonstration of the fact that these men had been unjustly convicted. A certain amount of political capital was made out of that.

At the time, it was a very sensational case, but whether it had any particular impact or not, I find very hard to judge. It was not the first time that there had been a miscarriage of justice, although this was a very high profile miscarriage of justice. I think that people’s attitudes to the police had been changing for some time. At least, people were more skeptical about evidence from the police. In this case though, it was not just the police, since there was a question of the reliability of scientific evidence. It could possibly be seen as one of a number of trials, the Guildford Four being another one, where people realized that miscarriages of justice could occur.

Another very important point in terms of the public perception as to the possibility of wrongful convictions was the case, I think in the 1960s, of Timothy Evans, who was hanged for a murder it was apparent he did not commit. That case was not so much a matter of police error, but because evidence had been given against him by the man who had actually done the murder.

Q: How do you think perceptions have changed over time towards miscarriages of justice?

In the 1960s, where in England there were a lot of challenges to established ideas and institutions, looking at things in a rather more liberal way, the public’s perception as to the reliability of policemen was altered. People began to think that they would not just accept the evidence of a policeman in a trial, without being aware of the facts and making a judgment.

There was a particular case in the 1960s of an experienced policeman who tried to frame demonstrators, I do not recall for what, perhaps an anti-Vietnam war demonstration, by planting implements on them. The man was not very wise because the people he tried to frame were perfectly respectable people, non-violent, who were demonstrating legitimately and properly. It was very striking at the time, even though it was not a huge case. A lot of people were affected by that, and gradually as time went on, more and more juries became aware that the police could tell lies. That healthy skepticism of police officers has remained ever since.

The counterweight to that is that, the police in my view, have made great strides in ensuring that the evidence they provide is reliable and accurate. There are still of course a number of policemen who abuse their positions of power, but in general I think the police force conducts itself in a more honest and open fashion than it used to.

Q: How do you rate the importance of having a jury system in Criminal Trials?

I think it is very important that people judging the guilt or innocence of defendants in criminal cases should apply the views of ordinary people, and there should be the opportunity for more than one person to consider the evidence to reach a conclusion.

I am a supporter of the jury system, and save in exceptional cases, I think it would be very important to preserve trial by jury. Because jurors can sometimes reach the true justice of the case, in a way people may describe as palmtree justice, but they can sometimes reach a conclusion that a lawyer or judge might not reach, on the basis of a sense of justice or fair play. I don’t mean to say that judges are averse to fair play and justice. But (jurors) can sometimes apply a kind of ordinary, fair, common sense, which you would not always find with every judge. And judges, perfectly understandably, look at things as lawyers, and sometimes cases merit the consideration of someone who is not a lawyer.

Having said that, juries can of course sometimes get it wrong, but that’s up to them. Whatever the failings may be, I think it is still the best system. As a person who used to prosecute a lot, the fact that a jury was considering a case made you consider every aspect of the case, because you had to be alive to the fact that the defence might well try and exploit something, and you therefore have to make a sensible appraisal yourself as to what the strengths and weaknesses of your case are. I think it helps, if you are a prosecutor, to make you apply your mind to the case, and question its strengths or weaknesses in a way that you might not otherwise do.  I think it brings about a good result in that way.

Daniel, 24, is the former head of the Innocence Project and has recently graduated from the National University of Singapore.

1R. v. McIlkenny, Hunter, Walker, Callaghan, Hill and Power (1991) 93 Crim. App. R. 287

2A sensitive technique to identify indented and electrostatic writing impressions on documents caused by other documents having been written whilst resting on top of the document under investigation.


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