Heibner, R. v (Rev 1)

In an appeal concerning a historic conviction, alleged defects in police procedure, trial directions, disclosure and later evidence must be assessed against the ultimate question: whether the conviction is safe. Modern safeguards may identify ways in which a trial would now be conducted differently, but they do not by themselves establish unsafety.

A confession said to result from oppression or improper conduct must be disregarded if the jury so finds. A conviction nevertheless remains safe where the directions gave the jury no rational basis to treat an oppression-induced confession as reliable, and the evidence does not establish oppression. Fresh evidence and unproven later allegations against police officers do not undermine safety where their relevance or effect is speculative, limited, or equally consistent with the prosecution case.

In 1978, Errol Clive Heibner was convicted at the Central Criminal Court of the murder of Beatrice Gold and sentenced to life imprisonment. The Full Court refused leave to appeal against conviction. The Criminal Cases Review Commission referred the case under section 9 of the Criminal Appeal Act 1995.

Heibner challenged the admission and treatment of his written confession, the adequacy of the jury directions, alleged non-disclosure, and the later-discovered misconduct or alleged misconduct of police officers. He also sought leave to advance further grounds. The central question was whether, separately or cumulatively, those matters rendered the conviction unsafe.

1. Appeal dismissed. The court held that none of the grounds, whether considered alone or cumulatively, gave reason to doubt the safety of the conviction.

2. The alleged denial of access to a solicitor could not safely be established after the passage of time. The appellant’s assertion at trial was untested by evidence showing whether the issue had been raised on the voir dire or what instructions he had given. The length of custody, the absence of a fresh caution during the Dixon interview, the meeting with his wife, and the form of the written statement also did not undermine the conviction when assessed in their full context.

3. The court gave the appellant the benefit of the modern approach identified in R v Mushtaq, (2005) 1 WLR 1513. It assumed that a jury should be directed to disregard a confession obtained through oppression or improper conduct even if true. The actual directions nevertheless required the jury to choose between a genuine confession and a fabrication caused by oppression and anxiety. They gave no sensible route by which a jury could treat a confession induced by oppression as reliable. The evidence did not establish oppression of this experienced appellant.

4. The challenges to the credibility of the interviewing officers depended on speculation about interview timings and Dixon’s attendance. The interview notes were not asserted to be verbatim records, and no evidential basis established dishonesty. The court would not usurp the jury’s fact-finding role on that material.

5. The newly disclosed witness evidence did not materially assist the defence. It was doubtful that the witnesses described the gunman, and their evidence could instead have supported the appellant’s account in his voluntary statement that he acted as lookout. The later, unproven allegations concerning Adams and O’Brien were unlikely to be admissible and could not support a speculative conspiracy. Tyers’s later misconduct could affect credibility only to a limited extent and did not strike at an important plank of the Crown’s case.

6. The court recognised that a modern trial would have been conducted differently. That hindsight did not displace the conclusion that the original conviction was safe.

• Court of Appeal (Criminal Division): On a CCRC reference, dismissed the appeal against conviction: [2014] EWCA Crim 102.
• Full Court: Refused leave to appeal against conviction on 1 December 1978.
• Central Criminal Court: Convicted Heibner of murder by a 10–2 majority on 18 November 1978 and imposed life imprisonment.