McIlkenny & Ors, R. v

Factual and Procedural Background

Six appellants were convicted on August 15, 1975, by a unanimous jury verdict on 21 counts of murder related to bombings in Birmingham on November 21, 1974. They applied for leave to appeal in March 1976, primarily arguing judicial hostility, but the application was dismissed. The Home Secretary referred the case back to the Court of Appeal twice: first in January 1987 based on fresh scientific and police misconduct evidence, and again in August 1990 due to further fresh evidence. The Court of Appeal hearings in 1987 and 1991 ultimately led to the dismissal of the appeal in 1988 and the allowance of the appeal in 1991 respectively. The appellants were accused of involvement in IRA bombings that killed 21 people and injured 162. Police interviews, scientific tests for explosive residues, and confessions formed the core of the prosecution case. Subsequent investigations revealed issues with the scientific evidence and police conduct, including fabricated or altered police notes and unreliable forensic testing procedures. The Court of Appeal in 1991 considered these fresh evidentiary developments in detail and ultimately quashed the convictions.

Legal Issues Presented

1. Whether the scientific evidence presented at trial, specifically the forensic tests for nitroglycerine contamination, was reliable and admissible.
2. Whether the police evidence, including written confessions and interview notes, was truthful and reliable, given allegations of fabrication and document tampering.
3. Whether the convictions were unsafe or unsatisfactory in light of the fresh evidence and statutory criteria under the Criminal Appeal Act 1968.
4. The proper role and powers of the Court of Appeal in dealing with fresh evidence cases, especially when retrial is no longer possible.

Arguments of the Parties

Appellant's Arguments

• The scientific evidence of Dr. Skuse, particularly the Griess test results, was unreliable due to contamination from nitrite in soaps or detergents and the non-specific nature of the test.
• The confessions were obtained through police misconduct, including brutality and fabrication of interview notes, rendering them inadmissible.
• Fresh evidence, including electrostatic document analysis (ESDA) of police notes, showed the police had fabricated or altered contemporaneous interview notes, undermining the prosecution case.
• The positive forensic results could be explained by alternative innocuous sources, such as contact with playing cards or adhesive tape, rather than explosives.

Prosecution's Arguments

• While the prosecution acknowledged that the scientific evidence was no longer reliable, they emphasized that the convictions might still be satisfactory on other grounds.
• The prosecution accepted that some police evidence was unreliable but highlighted other circumstantial and independent evidence supporting the convictions.
• The prosecution did not oppose the appeals but maintained that the court must independently assess whether the convictions were unsafe or unsatisfactory.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chard (1984) 78 Cr.App.R. 106	Permits appellants to develop grounds beyond the initial referral by the Home Secretary.	Allowed the appellants to raise additional grounds related to scientific evidence despite the single ground of referral.
Flower & Others (1965) 50 Cr.App.R. 22, [1966] 1 Q.B. 146	Quashing convictions without retrial when fresh evidence is conclusive.	Referenced regarding the procedure when fresh evidence conclusively undermines the prosecution case.
Stafford and Luvaglio v. D.P.P. (1973) 58 Cr.App.R. 256, [1974] A.C. 878	Clarifies the Court of Appeal's role in determining whether convictions are unsafe or unsatisfactory.	Guided the court's approach to assessing the safety of convictions in light of fresh evidence.
Jefferies (1968) 52 Cr.App.R. 654, [1969] 1 Q.B. 120	The Court of Appeal's powers are statutory and limited to those conferred by Parliament.	Supported the court's explanation of its limited jurisdiction and statutory framework.
Collins (1969) 54 Cr.App.R. 19, [1970] 1 Q.B. 710	Reinforces the statutory basis of the Court of Appeal's powers.	Used to emphasize the court's role as a statutory creature without inherent jurisdiction.
D.P.P. v. Shannon (1974) 59 Cr.App.R. 250, [1975] A.C. 717	Limits the court's jurisdiction to statutory powers.	Further supported the court's framework for exercising appellate jurisdiction.
Graham (1975) 61 Cr.App.R. 292	Discusses the distinction between 'unsafe' and 'unsatisfactory' convictions.	Referenced in considering the terminology and standards applied in quashing convictions.
Mycock (1985)	Sets the test for allowing appeals based on fresh evidence.	Applied by the court in assessing the safety of the convictions in this case.
Armstrong (The Guildford Four) (1989)	Affirms the test for quashing convictions on fresh evidence.	Used as precedent for quashing convictions in similar fresh evidence appeals.
Khan (1990)	Confirms the approach to appeals based on fresh evidence.	Supported the court's methodology in evaluating the fresh evidence.
Edwards (1991)	Further application of the test for unsafe convictions with fresh evidence.	Reinforced the court's approach to the present case.

Court's Reasoning and Analysis

The court undertook a detailed examination of the scientific evidence, focusing on the forensic tests conducted by Dr. Skuse, particularly the Griess test and gas chromatography/mass spectrometry (GCMS). Advances in scientific understanding revealed that the Griess test was not specific for nitroglycerine and could yield false positives due to nitrite contamination from soaps or detergents used in cleaning testing equipment. The court accepted the evidence of Dr. Lloyd and Dr. Scaplehorn that the original positive results were likely due to such contamination, undermining the reliability of the scientific evidence presented at trial.

Regarding the GCMS evidence, the court noted that the original operator, Dr. Drayton, qualified her earlier certainty about the presence of nitroglycerine, acknowledging that other unidentified substances could produce similar results. Further experimentation demonstrated that a peak previously attributed to nitroglycerine could be caused by substances unrelated to explosives. The court found the fresh scientific evidence thus cast serious doubt on the forensic basis of the prosecution case.

The court also analyzed the police evidence, focusing on the integrity of interview notes and confessions. Electrostatic document analysis (ESDA) revealed that contemporaneous notes of McIlkenny's interviews were not genuinely contemporaneous, with indications that pages were substituted or rewritten after the fact. Additional forensic examination showed multiple types of paper and ink used, inconsistent with the officers' testimony. The court found that Superintendent Reade and other officers failed to provide satisfactory explanations for these discrepancies, concluding that they had at least deceived the court.

Further concerns arose from the Reade schedule, a document recording interview timings and officers present, which contained unexplained alterations and crossed-out entries, undermining its reliability. The absence of proper custody records and the timing of their creation suggested attempts to obscure the true course of events. The court considered these factors cumulatively to severely undermine the credibility of the police evidence.

The court reflected on its statutory role, emphasizing that it must determine whether the convictions were unsafe or unsatisfactory based on all evidence, including fresh evidence, while respecting the primacy of the jury's fact-finding role. It acknowledged the difficulties inherent in fresh evidence cases, especially where retrial is impossible and the prosecution does not contest the appeal, but concluded that the fresh evidence substantially weakened the prosecution case.

Weighing the fresh scientific doubts and the demonstrated police unreliability against the original evidence, the court found the convictions could not stand. The inconsistencies in confessions and discrepancies in police records, combined with the now questionable forensic evidence, meant the convictions were unsafe and unsatisfactory.

Holding and Implications

The appeals were allowed and the convictions quashed.

The direct effect of the decision is the acquittal of the six appellants, as their convictions were found to be unsafe and unsatisfactory. The court did not order a retrial, recognizing the exceptional circumstances and the impossibility of a fair retrial. The decision underscores the necessity of reliable forensic evidence and honest police conduct for the safety of convictions. While the court acknowledged the ongoing public and legal discussion about the role of appellate courts in fresh evidence cases, it did not establish new legal precedent beyond affirming existing statutory principles and the established test for unsafe convictions.