Damned on the word of a convict

Two weeks ago Michael Stone was convicted for the murder of Lin and Megan Russell on the basis of three prison cell confessions.

This week his solicitor will attempt to get the Court of Appeal to quash the conviction. The case bears all the hallmarks of another miscarriage of justice based on unreliable evidence and calls into question the use of cell confessions in criminal proceedings.

In 1996 Keith Birchall was convicted of murder and sentenced to life. Part of the evidence against him was a cell confession he allegedly made to a fellow remand prisoner.

In January his conviction was quashed on appeal. A key element of that appeal was the validity of the cell confession used to convict him and the credibility of the prisoner who claimed that Birchall had made the confession.

The original judge and jury were aware that the witness had received a lighter sentence as a consequence of his “help”. But until January, the details of his original crime – and other information about previous allegations he had made against people for his own gain – had never been revealed.

At the Court of Appeal in January, Birchall's legal team argued – to the agreement of the court – that had the judge known more about the background of the witness he would have told the jury to be more wary of his evidence. He did not and the jury convicted.

“It is generally accepted that cell confessions only happen in weak cases,” said Kate Akester, criminal justice director at the pressure group Justice, who represented Birchall.

“If you are a grass in prison you have a lot to gain. There is often a quid pro quo – whether in terms of a reduced sentence or better treatment while in prison – that we do not know about,” Akester added.

The cell confession was not the only evidence used to convict Birchall. But in the Michael Stone case three cell confessions, made to other convicts while on remand, formed the prosecution case.

There is no forensic or eyewitness evidence against Stone, a heavily dependent heroin addict who never confessed during hours of police questioning.

His conviction and sentencing to three life sentences for the murder of Lin and Megan Russell, plus the horrific attack on Josie Russell, have made cell confessions a burning issue among criminal lawyers and barristers.

The fact that one witness, convict Barry Thompson, is now claiming he lied in court, has only inflamed the debate.

A senior legal source, who asked not to be named, referred to Thompson's denial as “an illustration of the unreliability of cell confessions, with prisoners doing and saying things for unknown motives”.

Thompson's evidence was less crucial to Stone's conviction than that of Damien Daley, jailed for public order offences. The trial judge, in his summing-up, made it clear to the jury that the reliability of Daley's evidence – he claimed Stone confessed to him through a cell wall at Canterbury prison – was crucial to their judgment.

Bruce Houlder QC, chairman of the Bar Council's public affairs committee, called for the law to be changed after Thompson recanted to prevent uncorroborated cell confessions being used. But his preference now, he says, would be for judgment to stay with judges rather than legislation.

“If a case depends entirely on a single uncorroborated cell confession made to a fellow prisoner, then it should not make it past half-time,” says Houlder. “This issue is a real concern. People should not be convicted on uncorroborated cell confessions.”

The lengthy Appeal Court judgment which followed the quashing of the Bridgewater Three murder convictions in 1997, said defence lawyers should be given all information on witnesses involved in cell confession cases.

This was to include not just criminal, but also prison records, including any offence committed behind bars and any other information about the person's character – for instance if they have given similar witness statements before, or acted as an informer.

If all the information on the background of the three witnesses was not given to the Stone defence team, it could provide grounds for appeal.

Other senior criminal barristers believe there is a larger issue to deal with – the quality of investigative police work.

“I don't know of any other case, at least not a serious case, where cell confessions have been the sole evidence to convict,” says Ronald Thwaites QC. “It's a hard decision and police clearly thought Stone was a dangerous man, but counsel should have said there was not a case to go on here.

“It doesn't need a change in the law. It is common sense not to base a case on statements from people who, by virtue of the fact they are in prison, are untrustworthy. The core problem is that police cannot find the evidence, despite all the technology and training to solve hard cases.”

Thwaites says a class of “super-detectives” should be formed to solve cases like the Russell murders, rather than relying on cell confessions.

The Criminal Cases Review Commission says it has referred 30 cases to the Appeal Court since April 1997. None has involved a cell confession.

That will mean little to Michael Stone. His solicitor Derek Hayward is launching an appeal, but it is the validity of cell confessions which are now on trial.