James & Ors, R. v

In an appeal against a historic conviction, the decisive question is whether the conviction is safe when assessed by current standards of fairness. A denial of safeguards available at the time, and of protections subsequently recognised as necessary, may be material to that inquiry.

Where the prosecution case substantially depends on admissions obtained after denial of access to legal advice, without adequate contemporaneous records, the convictions may be unsafe. This is particularly so where admissions by several defendants were obtained through confrontations and are interdependent: the unsafety of one admission may contaminate the safety of the others.

In 1986, the three appellants were convicted at Nottingham Crown Court of grievous bodily harm with intent following a severe attack on a British Transport Police constable. The prosecution case depended substantially on confessions made during prolonged police detention and on admissions elicited after confrontations between co-defendants.

The appellants alleged that they had been denied access to a solicitor and that important interviews and confrontations had not been contemporaneously recorded. A co-defendant, Alan Richardson, had already had his conviction quashed following a reference by the Criminal Cases Review Commission.

The present appeals also reached the court by a Commission reference under the Criminal Appeal Act 1995. The central issue was whether the convictions remained safe when judged by current standards of fairness.

1. Appeals allowed; convictions quashed. The court held that all three convictions were unsafe. Although the Crown did not oppose the appeals, the court independently concluded that they had to be allowed.
2. The applicable inquiry was the safety of the conviction. In applying the approach in R v Ashley King [2000] 2 Cr App R(S) 391 and R v Bentley (deceased) [2001] 1 Cr App R(S) 307, the court assessed the historic interviews by current standards of fairness. It was relevant both that safeguards then applicable had been denied and that later protections had been recognised as necessary.
3. By present standards, these young suspects should have received access to a solicitor and the material interviews should have been contemporaneously recorded. There should also have been a record of the events between Melnichenko's arrest and his first confession. Those shortcomings were sufficient for the safety assessment; the court did not need to make wider findings about police conduct.
4. The distinctions between the appellants' cases and that of Alan Richardson were immaterial. The admissions were substantially interdependent because confrontations were arranged between the defendants. Since the unsafety of one conviction affected the reliability of admissions used against the others, it contaminated the safety of all three convictions.

• Court of Appeal (Criminal Division) — on references by the Criminal Cases Review Commission, allowed the appeals and quashed the convictions as unsafe ([2008] EWCA Crim 1869).
• Crown Court at Nottingham — on 19 September 1986, convicted each appellant of grievous bodily harm with intent and imposed eight-year custodial sentences.