Green light for police malpractice – the Susan May judgement
by Andrew Green
first published 2002
The dismissal of the Susan May’s appeal against her conviction for murder is not only a disaster for Susan and all her family and numerous friends: it creates dangers for any innocent person suspected by the police of committing a crime. Two important breaches of the Code of Practice which governs the treatment of suspects by the police were dismissed by three appeal court judges as not breaches at all. This decision gives a green light to unscrupulous officers to resurrect the practice of ‘verballing’ – making up alleged verbal remarks by suspects, which PACE (the Police and Criminal Evidence Act 1984) and the codes of practice were designed to eliminate. The judgement is a deeply reactionary one which could have the effect of overruling the letter and spirit of parliamentary legislation.
Back in the 1970s, the police were routinely accused of verballing. ‘Verbals’ included unsolicited admissions implying involvement in crimes, and full scale confessions in interviews that were only recorded later as statements, which suspects refused to sign and which they would say, if the case went to trial, were fabricated. Detective Superintendent Tony Lundy said: ‘I was always being accused of “verbals”…. For years defence lawyers were claiming I’d verballed their clients…’
The problem with verballing was that it did not work. Juries no longer believed police officers who claimed that suspects had voluntarily confessed to them. PACE was intended to restore confidence in the criminal justice system. It made provision for the tape recording of interviews (s.60) and for codes of practice regulating the treatment of suspects (ss.66, 67). Under section 76 (2)(b), it made provision for the exclusion of any confession evidence that might be unreliable, and under section 78 it gave judges the power to exclude evidence ‘if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the proceedings that the court ought not to admit it.’
The problem of allegations of verballing was dealt with partly by the introduction of tape recording for formal interviews, and partly by precise record keeping. According to section 11.13 of Code of Practice C:
A written record shall also be made of any comments made by a suspected person, including unsolicited comments, which are outside the context of an interview but which might be relevant to the offence. Any such record must be timed and signed by the maker. Where practicable the person shall be given the opportunity to read that record and to sign it as correct or to indicate the respects in which he considers it inaccurate. Any refusal to sign shall be recorded.
Further guidance is given in note 11D:
When a suspect agrees to read records of interviews and of other comments and to sign them as correct, he should be asked to endorse the record with words such as ‘I agree that this is a correct record of what was said’ and add his signature. Where the suspect does not agree with the record, the officer should record the details of any disagreement and then ask the suspect to read these details and then sign them to the effect that they accurately reflect his disagreement. Any refusal to sign when asked to do so shall be recorded.
If the code is broken that does not in itself mean that evidence produced as a result of the breach must be excluded from any subsequent court hearing, but since evidence so produced is likely to be unreliable, then it is quite likely to be excluded. If police officers who are experienced and know the codes well, break the code for no good reason, then this is may be because they cannot obtain the evidence they want by legitimate means, and so have resorted to practices which could include verballing.
Earlier appeal court decisions took a firm line with police who broke or even just evaded the provisions of the codes.
In the 1990 case of Canale (1990) the Lord Chief Justice, Lord Lane, said
This case is the latest of a number of decisions, emphasising the importance of the Police and Criminal Evidence Act 1984. If, which we find it hard to believe, police officers still do not appreciate the importance of that Act and the accompanying Code, then it is time that they did. The Codes of Practice, and in particular the Codes relating to interviews and questioning of suspects, are particularly important.
In the same year, in the case of Walsh, the court stated
The main object of section 58 of the Act [Access to Legal Advice] and indeed of the Codes of Practice is to achieve fairness – to an accused or suspected person so as, among other things, to preserve and protect his legal rights; but also fairness for the Crown and its officers so that again, among other things, there might be reduced the incidence or effectiveness of unfounded allegations of malpractice. To our minds it follows that if there are significant and substantial breaches of section 58 or the provisions of the Code, then prima facie at least the standards of fairness set by Parliament have not been met.
And in the same year the court quashed the conviction of Hassan Khan, because alleged confessions by him could not be considered reliable, according to Lord Lane. West Midlands police had recorded these confessions during a long car journey, and then made an extra and unnecessary journey so as to have a further opportunity to say they had heard yet more admissions. In 1991 the appeal court quashed the conviction of John Edwards for armed robbery. West Midlands police officers had brought him from Salford and then driven aimlessly round Birmingham with him, during which journey they said he confessed. In both cases, the officers resorted to the ‘car seat confession’ device in order to deny suspects the protections provided by the Code of Practice, in particular access to a solicitor.
Susan May was convicted on evidence which depended on two breaches of the Code of Practice C, which covers interviews, access to legal advice and record keeping. To put the breaches of the rules in context, I will summarise the case against Susan May.
Susan looked after her 89 year old aunt, who lived on her own. She visited her on the night of 11 March 1992, and again on the following morning, when she found her dead, murdered in her bed. There were signs that a burglary had taken place. At first, Susan was not suspected of involvement in the crime.
There are two main items of evidence on which Susan was convicted of the murder of her aunt. The most important consists of three stains in a line on the wall of the aunt’s bedroom. The age of theses stains is not known. One has Susan’s palm print in it. The second is probably human blood. The third is probably her aunt’s blood (there is doubt about whether this third stain was on the wall at the time when Susan found the body). The prosecution case was that the stains were bloodstains made on the night of 11 March by Susan, immediately after she had murdered her aunt.
The other significant item of evidence against Susan is that, on the way out of a police station after providing fingerprints for elimination purposes, according to two officers Susan said: “Do you know the scratches on my aunt’s face, can they get stuff from down the fingernails at forensic?” There were scratches on her aunt’s face, but they could not have been seen by Susan when she found the body or when she formally identified her aunt. She could only have known about the scratches if she was the murderer.
Detective Sergeant Janet Rimmer, who had taken Susan’s fingerprints, said she was ‘astounded’ by this remark and immediately reported it to Detective Superintendent Kerr, who was in charge of the investigation. He advised her to make a note of it, he says, and to ask the other officer to sign this note. Susan was not told of the allegation that she had made the remark until she was interviewed twelve days after the police say the remark was made.
Although there were many opportunities for the officers who claimed to have heard this remark to show Susan the record of it, as required by Code of Practice C s.11.13, and ask her to confirm, deny or explain the remark, the officers made no attempt to do so. DS Rimmer says she recorded the remark in her pocketbook, but this pocketbook was never produced in court and the police say they have lost it. All we have is a photocopy of what is said to be the relevant page.
Towards the end of Susan’s fifth interview as a suspect on 30 March 1992, the ‘scratches’ remark was first mentioned.
DCI Rainford: DS Rimmer, that’s Janet Rimmer, as you know her.
Susan May: Yeah
Rainford: As you know, has told us that you mentioned that your aunt had scratch marks on her face, how did you know that?
May: I never mentioned that.
Rainford: You never mentioned that?
May: I never mentioned that, never. Scratch marks on her face?
May: I’ve never said that.
Rainford: I can only tell you what I’ve been told.
May: Well is that written down that?
Rainford: That she’s told me that you have mentioned that your aunt had scratch marks on your face.
May: I’ve never said that. I thought aunty had blood on her cheeks. I’ve never mentioned scratch marks, never.
Susan has consistently maintained that she did not utter the ‘scratches’ remark, and that the allegation arose either from a misunderstanding of some earlier conversation, or that the remark was fabricated. Susan’s daughter was present at the time when the remark was supposedly made, and she did not hear it. The trial defence was conducted on the basis that the remark was never made, and that it was fabricated by DS Rimmer.
Unless we accept the photocopy of the pocketbook page as a record of the remark, there is no contemporaneous record of it. Contrary to normal practice, no record of the remark was entered on the computer record which held all other material generated by the investigation. It did not feature in the Policy File, which recorded all other significant developments in the case. The interview transcript quoted above implies that DCI Rainford had not seen a record.
This is just the situation that the Code of Practice C 11.13 was designed to avoid, and since the officers involved clearly and knowingly broke this rule, we are entitled to conclude that the remark was not made, and no record was made at the time, unless we believe what the police are telling us. If we choose to believe them, as the appeal judges say we should, then there is no point to the rules. The rules are designed not for the benefit of suspects, but to give credibility to allegations by the police. If they choose not to follow the rules even when there is nothing at all to prevent them from doing so, then they are not entitled to any credibility.
Readers may feel that I am labouring this point. I do so because three appeal judges seem to have missed it. If they had accepted it, then they would have been obliged to exclude this item of evidence under section 78 of PACE, since ‘the admission of the evidence would have such an effect on the proceedings that the court ought not to admit it.’
Much of my argument applies to the other breach of the rules. This relates to the other item of evidence, the three marks on the wall. Although there could be a number of explanations for why these marks were on the wall, the prosecution case was that they were all made by the Susan immediately after killing her aunt. However this story only held together if on the morning when she found her aunt, Susan did not touch the body, and so get blood on her hands and make the marks then, rather than the night before when her aunt died. Not much blood would have been needed to make the stains, so it would not have been obvious to anyone else if she had blood on her hands. So only Susan could say whether she touched the body or not. But when she found the body, she was shocked and very distressed, and ran from the house in a panic. She was ‘hysterical’, according Detective Superintendent Kerr, the officer in charge of the case. Could she be relied upon to remember precisely what she did at the time?
What was at stake when the police questioned her on this matter was nothing less than the whole of the case against her, and, for Susan, the prospect of being prosecuted for murder and a life sentence. The police understood this, but Susan did not. She had no idea that she was a suspect, and no idea of what her rights might be as a suspect, since no one had told her. So when DS Rimmer interviewed her as the witness who found the body, she was not aware that what she said would be used against her in a subsequent trial. She was, as always, co-operative with the police and answered DS Rimmer’s questions. DS Rimmer wrote down her version of the answers, omitting her own questions, and producing a statement as if Susan had simply given an uninterrupted account. Witness statements are always produced in this way. In this account, Susan is recorded as saying
It was absolute horror. I knew something was wrong. I didn’t touch my aunt in any way… I thought I’d seen blood on her face and I turned tail and ran out [emphasis added].
So the prosecution story could be completed. On every subsequent occasion that Susan was asked whether she touched the body, she was much less definite. In her trial:
Question: And did you touch her [the aunt] at all?
May: No, I don’t think I did…
Earlier, in a police interview, she was asked about her memory of when she found her aunt, and said:
It’s not vivid, I mean I’ve gone through it so many times, to begin with I couldn’t remember what I’d done that morning…
Then the police told her, for the first time, that they had found her ‘bloodstained fingerprints’ on the wall.
It needs explaining, doesn’t it?
It does need explaining, but I can’t explain, have also said to you I can’t positively and clarify exactly what I did when I went in that bedroom. …
No you were very sure that you had not touched your aunty or anything in that room.
I don’t think I did. I don’t know what I did… I’ve told you that as well.
…you were adamant and you’ve remained adamant that you didn’t touch your aunty…
I’ve told you that I can’t be 100% sure what I did when I first found her.
In a later interview:
Do you still say that you didn’t touch your aunty after you found her dead?
I told you I can’t be sure what I did. I’ve said that all along. I don’t know what I did when I went in that room.
You were quite adamant earlier on that you hadn’t touched her.
No I wasn’t adamant. I said I couldn’t be completely sure.
How did your bloodstained fingerprints get on that wall in your aunt’s house?
I don’t know. I don’t know ’cause I can’t remember what I did in that room when I found her…
So the only statement which was not qualified by doubts about what she could actually remember was the first, written by a police officer investigating the murder, without any warning given that she was under suspicion of having committed the murder, that it might be used against her in a court of law, or that she was entitled to consult a lawyer.
It is absolutely clear that on this date, 23 March 1992, Susan was suspected by the police of murdering her aunt. The same officer who had apparently claimed five days earlier to have heard the scratches remark which ‘astounded’ her, wrote the key witness statement. On the day after the finding of the body, the possibility that this was a ‘domestic murder’ became the first line of enquiry, according to the Policy File in which decisions were logged. On 20 March, the fingerprint analyst informed the inquiry team that one of the stains on the wall contained Susan’s palm print. That same day it was decided to interview Susan as a suspect. At 9.00 on the morning of 23 March, just before DS Rimmer interviewed Susan as a witness, Det. Supt. Kerr had to check one more detail: was there any wet blood at the scene when Susan found her aunt’s body, which could have been transferred to the wall on Susan’s hands? Kerr telephoned Michael Davie, the forensic scientist who examined the murder scene. He confirmed the blood was ‘still damp on pillow when I got to the scene’ at 1.10 p.m. At that moment it became yet more important that Susan should be recorded as saying unequivocally that she did not touch the body, if a case against her was to be constructed.
In 1999 Susan asked the Police Complaints Authority (PCA) to investigate her complaint that she had been interviewed as a witness when she should have been treated as a suspect. In the PCA’s response, Authority Member Ian Bynoe said they had spoken to Det. Supt. Kerr.
In interview he said that the decision was made to take a witness statement from you. Whilst this was being done he and Detective Chief Inspector Rainford became aware that your fingerprint had been identified in blood on the wall. They kept this to themselves because if, during the course of making your statements, you had said that you had touched your aunt and the wall it would have explained the bloodstained fingerprints and you would not have become a suspect. If you said that you hadn’t touched the body and the wall then there would have been suspicion about how your fingerprint had come to be in blood on the wall.
The murder investigation Policy File details Superintendent Kerr’s policy in relation to the categorisation of suspects. The document records that: “Nominal records of suspects will be endorsed “Y” only on the authorisation of the [Senior Investigating Officer]”, The entry for 23 March shows that (with two other persons) you were to be shown as a “suspect” with the appropriate entry being made. Item 3 on the policy log records that the enhanced fingerprint impression in blood had been identified as that of Susan May.
This evidence shows beyond reasonable doubt that by 23 March you were being treated as a suspect by the SIO. Superintendent Kerr’s answers when interviewed and the policy log itself establish that there were objective grounds for suspicion. In my view, and applying paragraph 10: 1 of Code C, PACE Act 1984 Codes of Practice, it was therefore necessary from that time for you first to be cautioned before you were asked to provide any evidence which might be used in court.
Mr Bynoe concluded:
My analysis of the evidence leads me to the conclusion that the statement taken from you on 23 March 1992 should only have been taken from you after you had been formally cautioned. Mr Kerr should bear the main responsibility for the fact that this was not done. To this extent, your complaint is upheld.
In legal terms, the taking of the witness statement from Susan on 23 March constitutes an interview, and according to the Code of Practice, interviews should take place in the custody suites of police stations, tape recorded and preceded by the formal caution and a clear explanation of the right to legal advice.
Taking a witness statement from Susan at this stage was a device for avoiding the rules in the Code of Practice, similar to the extended car journeys on which West Midlands officers took some suspects shortly after PACE came into force. In Susan’s case, as in those cases, suspects were deprived of the right to legal advice, and records were simply written by police officers. But whereas in the 1990s convictions resulting from such flawed evidence were overturned by the Court of Appeal, in Susan’s case the Court not only upheld the conviction, but said that the rules had not been broken.
It seems crystal clear that the police officers investigating the murder of Susan’s aunt broke the rules on two occasions. If they had not done so, then it is probable that they would not have obtained enough evidence to secure a conviction. But according to Lord Justice Kennedy, in the judgement given on 7 December 2001, he and his two fellow judges were ‘unable to detect any breach of any provision of any code that was then in force’ (paragraph 48).
If these were not breaches of the Codes of Practice, then the old practice of verballing would not be a breach. Police officers can write down any remarks they want to attribute to suspects, and have these remarks admitted as evidence in trials. They can ask suspects questions without reminding them of their rights and telling them that their answers may be used against them, in the absence of any solicitor, and they can write up the answers later, without recording what the questions were. In other words, the Appeal Court’s judgement destroys the provisions of PACE and the Codes of Conduct, as if our elected representatives in parliament had never enacted PACE, or approved the Codes of Practice by a resolution (as parliament is required to do, and has done).
Appeal court decisions don’t get much worse than that. Appeal court judges are intelligent and well-informed people, and if they choose to make a decision which effectively extends police powers and reduces protections for suspects, then they are no doubt aware of the implications of their decision.
This was Susan’s second appeal, following a referral by the Criminal Cases Review Commission. Since the judges refused to recognise that two breaches of the Codes of Practice took place, then the logical next step is to make an application to have the case heard by the European Court of Human Rights, under article 6 of the European Convention for the Protection of Human Rights, which guarantees the right to a fair trial.
There are a number of reasons why Susan did not have a fair trial, and I’ve covered just the two of them that concern breaches of the rules. We can expect the judges of the European court to take a more rigorous view of what constitutes a breach of the rules; to look more dispassionately at the rules and why they have been put in place to protect both suspects and the credibility of the police, rather than to give the rules an interpretation that permits and extension of police powers, in the way our own judges have done.
If the European Court accepts that these were serious breaches of the rules, then it follows that the two items of evidence that resulted from the breaches should have been excluded from her trial. Her case can then be referred for another appeal by the Criminal Cases Review Commission. There never was much evidence against Susan, and without these key items the prosecution case would no longer exist.
 Martin Short, Lundy, Grafton 1992, p.107; see also Andrew Sanders and Richard Young, Criminal Justice, Butterworth 1994, p.171
 Canale (1990) 91 Cr.App.R. 1
 Walsh, (1990) 91 Cr.App.R. 161
 The Guardian 24 February 1990
 Tim Kaye, Unsafe and Unsatisfactory? Civil Liberties Trust 1991, p.55
 Once it is established that the admission of an item of evidence would have such an adverse effect on the fairness of a trial that the court ought not to admit it, then the court cannot logically exercise a discretion to admit it (Blackstone’s Criminal Practice F2.4, referring to Auld LJ in Chalkley  QB 848 at p.874).
 Statement of Reasons, Criminal Cases Review Commission, paragraph 9.107
 All Susan’s responses to the question of whether she touched the body are quoted in the first appeal judgement of 14 February 1997, pp. 12-22
 See Absolam  Crim.L.R. 748, at page 336: “It is of course plain that this was not in any formal sense a conventional interview, but equally in our judgment it is plain that it was an interview within the purview of the Code, in that it was a series of questions directed by the police to a suspect with a view to obtaining admissions on which proceedings could be founded. There was nothing in the nature of the questions and answers in this case which, in our judgment, makes the provisions relating to interviews in any way inapplicable. Indeed, this is just the sort of situation in which those provisions are most significant.”
See also (1990) 91 Cr.App.R. 48 “In our judgment it is not within the spirit of the Act or the code that ‘interview’ should be given a restricted meaning. Normally any discussion or talk between a suspect or prisoner and a police officer about an alleged crime will amount to an ‘interview’, whether instigated by the suspect, or prisoner or a police officer…”
See also Hunt  Crim.L.R. 582-3
 Criminal Cases Review Commission Statement of Reasons, paragraph 9.111 :
From the Commission’s examination of the relevant documentation, there is a clear implication that the third statement was taken at this late stage in order to ensure that Mrs May’s answer to the crucial question of whether or not she touched the body, as yet not formally recorded, was recorded in writing and signed by her. Once that had happened, it would have been extremely difficult for Susan May to have altered that stance, had she wanted to. In addition, there is no record of that crucial question being put to her when she made that statement. There is no record of exactly what words were used, or the tone of the question. It could have been put to her in a perfectly acceptable manner, however, she could, for example, have been asked “You didn’t touch the body did you?” in such a manner as to imply that she should not have done so, and thereby invite a negative answer from a person who might at this stage be unsure one way or another. Some of the questions put to her in interview were put to her in this manner, for example “you didn’t touch her or shake her?”; “you wouldn’t have blood on you?”, “you wouldn’t have any on your hands?” In the absence of any record of the questions put to her when her witness statement was taken, it is impossible to be sure that the crucial question was put to her in a fair and objective way, without leading her. Had she been treated as a suspect, this interview would have been recorded.
 Criminal Cases Review Commission Statement of Reasons, paragraphs 9.96 and 9.112.