HC Deb 28 May 1971 vol 818 cc745-59

12.15 p.m.

Mr. David Lambie (Ayrshire, Central)

Thank you, Mr. Speaker, for giving me the opportunity of presenting the case of Colin Temple. Colin Temple, a boy aged 17, was convicted at Glasgow Sheriff Court of the crime of assault with intent to ravish. The crime took place in Kelvingrove Park, Glasgow, on 22nd April, 1970. The victim was a young married woman who was pushing a pram up an incline when set upon by her assailant. As there was undoubtedly some evidence against the boy Colin Temple which would entitle a jury to convict him—as this jury did, on a majority—the House may wonder what all the fuss has been about, and why, last week, in the General Assembly of the Church of Scotland, the belief was declared that the decision was not in accordance with the facts and Temple's innocence was proclaimed.

Hon. Members who saw the B.B.C. television programme "Nationwide" on Wednesday night may realise what all the fuss has been about. As a politician, in the past I have objected, violently sometimes, to trial by television. However, on this occasion I congratulate the "Nationwide" team on the high standard of their investigation, and I take this opportunity of putting on record my thanks to them for showing the facts be- hind this shocking case. They gave the general public some idea of the events that led to an innocent boy being caught up in a net and sentenced for a crime he did not commit.

There would have been no necessity for this debate if the boy's defence had been as adequately presented to the jury at his trial as it was presented on Wednesday night by "Nationwide". During the period of approximately five months——

Mr. Speaker

Order. This is a rather difficult debate for the hon. Member because he is not in order in challenging a decision of a court. He has to steer rather carefully.

Mr. Lambie

Thank you very much, Mr. Speaker. I am not challenging the decision of the court. Actually I am giving my opinion of the broadcast by the B.B.C. on Wednesday night.

Mr. Speaker

If I may again try to help the hon. Member, I think that having commented on it in that way, without challenging it, he must come somehow to Ministerial responsibility. That is a matter which he can raise.

Mr. Lambie

Thank you, Mr. Speaker. During the period of five months when Colin Temple was in gaol awaiting trial he was never once visited by his lawyers, the people appointed through the legal aid scheme to defend him.

The boy Temple, who is of low intelligence, rather facile, and sometimes not very coherent—nor, indeed, it must be said, very truthful—was at the time of the crime an inmate of an approved school run by the Church of Scotland at Beith in Ayrshire, in my constituency. This school is approximately 22 miles distant from the scene of the crime in Kelvin-grove Park, Glasgow.

Evidence is before the Secretary of State and is now on public record that the boy was in the school for the whole of the day in question and, in particular, on the afternoon during which the crime was committed at about 2.15 p.m. It was said that the assailant had been in the park at least 10 minutes before that; say, about 2 o'clock. Colin Temple was seen at the school during the mid-day dinner break, and after that. The 1.30 p.m. parade of the boys was correct and checked by the headmaster himself. The parade was in two parts and the part to which Temple belonged consisted of only about 18 boys.

Colin Temple was working with a building squad all that afternoon, carrying pails of mortar, under the sight and supervision of an instructor, and was seen and spoken to by many boys. He was at the parade at 4.50 p.m. at the end of the afternoon work spell.

Hon. Members may well wonder how the boy was ever convicted if all this evidence was true and was available. In fact, only a small amount of it was brought out at the sheriff court trial last August. If the full facts as later proved had been brought out, the verdict could surely only have been one of acquittal. Quite apart from the overwhelming evidence that the accused boy was 22 miles away at the time, there were many weaknesses in the prosecution case not before the jury.

I give just one example of a point not made. The victim, whose honesty is not criticised, attended an identification parade, after which she said that Temple was her assailant. She identified him in court three months later at the trial. What was not mentioned was that she had told the police at the time of the identification parade that she thought that her attacker was taller than Temple—Temple is a very small boy. This was recorded by the police at the time upon the identification parade report but was not put forward at the trial.

At the trial neither prosecution nor defence called the evidence of boys who could have said, and who later did say, that Temple was working in the school at the time of the crime. Nor was there the evidence of his headmaster that there were no absentees from the 1.30 p.m. parade who were not properly accounted for. The solicitor, Mr. Bainbrigge, who had been supposed to prepare the defence, handed over without explanation to another solicitor—Mr. Noel McPartlin—who at the last moment briefed counsel to defend the boy. Counsel never saw the statements which had been made by the boys who had been with Temple on the afternoon of the crime in the school. No doubt he did his best, but he just did not have the material for the effective rebuttal of the prosecution case.

The conviction shocked all those who new that the boy was completely innocent simply because he had not been there. Hon. Members can imagine the effect upon approved school boys who particularly need to have respect for the law and a belief in the justice of our institutions built up in them rather than to be shattered by hearing of a fellow inmate convicted of a grave crime they knew he had not committed.

Appeal was made to the High Court to allow further evidence to be produced. The court refused to hear the evidence and said in effect that even if heard it would not have affected the verdict. A petition was presented to the Secretary of State to recommend the exercise of the Royal Prerogative, and he took the course, which he stressed at the time was unusual, of asking the court to hear certain evidence which was the very same evidence which the boy's advisers had wanted the court to hear. The court heard the evidence in March—two days of it—and then reported to the Secretary of State that it would not have affected the verdict.

We do not know the exact details of the report to the Secretary of State because that is private between the court and the Secretary of State. However, it will not do for the Secretary of State or the Lord Advocate today to shelter behind the opinion of the High Court of Justiciary. The boy's petition was to him as guardian of the Royal Prerogative. He should look at the new evidence for himself and see where it leads him. I appeal to the House and to the Secretary of State to look at this, not as a legal problem of whether there was sufficient evidence to justify such and such a course, but as a matter of right and wrong; did this boy commit this crime or did he not?

It cannot be said that a proper verdict has been given on the evidence, because the jury's verdict was on only half the evidence. Two entire days of further evidence in March have not been before any jury. The arbiter upon that is the Secretary of State, who is responsible to the House. The new evidence when added to the old shows only one thing—that the boy did not and could not have committed the crime.

Let me try to summarise the facts. Temple was involved in this thing only because he was seen in the same public park six days after the crime and answered the very vague description of the assailant. He had at that date overstayed a weekend leave from the school and had been duly reported to the Ayrshire police the previous day as an absentee. After about five hours in police custody he admitted that he had committed the crime the previous Wednesday and is supposed to have given some details. At an identification parade the victim and one other lady picked him out as the assailant. On this evidence, despite his denials and testimony from some members of the school staff, a majority of the jury convicted him. There were suggestions that perhaps the 1.30 p.m. parade was cooked and that the staff were just trying to be loyal to the school and covering up for deficiencies of supervision.

What were the weaknesses of the prosecution case? First, any detailed examination of the supposed confession by the boy, bearing in mind his calibre, shows its worthlessness. All that was written in the police is a bare, "I did it", or, "Sorry now I did it". There is a contradiction in the police evidence whether the supposed filling in of details by the boy, which he strongly denies, was recorded in writing. It now emerges that the details said to have been given were either common knowledge—the crime had attracted considerable publicity in the local Glasgow Press—or else were manifestly inaccurate. I could elaborate on this, but time forbids.

I must make three other short points about the boy's confession, because I think that they are the points that pressed heavily on the jury. First, on the day of his arrest Temple had no opportunity before being cautioned and charged to speak to his foster parents, his headmaster or any teacher, or any solicitor. On the night of his arrest—at about 11 p.m.—the police, very unwillingly, allowed his headmaster and a social worker to see him. I stress that Temple was arrested at about 10 a.m. and had been charged at about 4.30 in the afternoon. No wonder when his headmaster finally interviewed him at a 11 p.m. and asked him why he had confessed to a crime that he had not committed the boy's only answer was, "I was feart".

Second, the confession was retracted the night of the day it was made. The jury did not know this because of an objection taken by the defence. It was in the context of a totally false explanation of how the boy had got out of the school on the day of the crime—he said he was on a dental pass to Paisley in Renfrewshire. He had no dental treatment or appointment that day. No boy from the school received any dental treatment at Paisley. Third, it is ironic that in the background report submitted to the court after conviction it is said that Temple is unsuitable for psychiatric treatment as long as he continues to deny that he committed the crime.

I turn now to the evidence of the two ladies. As I have said, the victim thought that her assailant was taller than Temple, although she identified him. The other lady—again there is no criticism of her honesty—made a curious statement about the colour or shade of Temple's hair being darker in August than in April. So of the two confident identifiers, one thought that the attacker was of a different height and the other thought that his hair had changed colour.

What is to be put on the other side of the picture in favour of Colin Temple? Just about everything one can think of. Temple was in an establishment in which repeated and regular checks were made of the inmates. He was seen at dinner time, checked at 1.30, and seen all during the course of the afternoon. The right hon. and learned Gentleman must face these facts. There are other factors of which he knows which fix the date, so it cannot possibly be said that an honest mistake was made by the staff. Either this evidence is true or the headmaster, the staff and the boys entered into a conspiracy to commit perjury and create a false alibi for Colin Temple.

I have two further points, both of great significance, which I wish the Lord Advocate to answer. The House is entitled to have his answers, and I shall put the matter in the form of questions to him. If this boy were in Kelvingrove Park on that Wednesday afternoon, how did he happen to know that two particular boys, whom he named, had been sent for by the deputy headmaster at the school at about 3 p.m.? Both the Secretary of State and the Lord Advocate know the background to this point, and how all the possibilities concerning how Temple could have known this have been thoroughly examined by his advisers. Unless Temple is endowed with the subtlety of a serpent, the boy knew of that matter only because he had been present when they were sent for, as he himself says he was.

Second, if Colin Temple were the assailant, how does it come about that in the new evidence given in March, Mrs. Connelly, an eye-witness of the crime, is positive that the assailant was a person with long hair to his shoulders at the back and to his eyebrows at the front? It is indisputable that Temple has very short cropped hair; it could not have flopped about as the assailant's was seen to do.

Mrs. Connelly was described by Lord Avonside as an intelligent young woman. On Wednesday night, in the television broadcast on "Nationwide", Mrs. Connelly was interviewed and she again stated that Colin Temple was not the boy. When asked why she had not stated this in court, she replied that she had told a policeman, who had then told her to sit down. The lawyer for Colin Temple never asked her that question.

The B.B.C. has kindly given me a transcript of the questioning of Mrs. Connelly in that interview, and I shall read her words now to the Lord Advocate, putting the relevant passage in the form of question and answer as the interview ran. Mr. Philip Tibenham, the reporter, asked Mrs. Connelly:

"How close a look did you get at the man who attacked this women? (Answer): A good look.

"What did he look like? (Answer): About 5ft. 7in., and he had long hair.

"Are you sure his hair was long? (Answer): Yes.

"When was the first time you laid eyes on Colin Temple? (Answer): In the sheriff court.

"That would be at his first trial? (Answer): That is right.

"What was your impression then? (Answer): It was not him.

"Well, if you were that sure, why did you not say so? (Answer): I did. I said it to a policeman.

"When did you say that? (Answer): When he led me from the witness-box to my seat.

"After you had given your evidence? (Answer): That is right.

"And when you said that the man in the dock was not the guilty man, what did the policeman say? (Answer): He told me to sit down."

That is a correct transcript of what was said by Mrs. Connelly at the interview, Mrs. Connelly having been one of the witnesses at the trial at which Colin Temple was identified.

Does the Secretary of State say that that evidence was untrue? If not, does it mean that, on the way to commit the crime, Colin Temple not only grew in stature but grew his hair six inches longer? Mrs. Connelly was absolutely positive that Temple was not the assailant, and she was an eye-witness to the crime.

Before making my final appeal to the Lord Advocate, I wish to direct his attention to another unusual and disturbing happening in this case. In the report at the General Assembly of the Church of Scotland on the Colin Temple case, the Rev. Harry Ricketts, convener of the Social Services Committee, stated that a letter had been received from Lord Avon-side, and that, as the letter came while the case was sub judice, the contents of it had been revealed to no one since it contained statements regarding one of the witnesses in the Colin Temple case.

The letter was an eight-paragraph letter, and contained one paragraph expressing concern over the case of Colin Temple. The letter named Mr. Kyle, a residential social worker, as one of the witnesses and implied that Lord Avonside felt that Mr. Kyle's attitude rendered him unsuitable or unfit to hold a post of responsibility in Geilsland School, and, I believe, recommended his dismissal. The letter did not imply dishonesty by Mr. Kyle. It simply criticised his attitude, although I believe that the recommendation for dismissal was firm.

What guarantee can the Lord Advocate, on behalf of the Secretary of State, give that Lord Avonside did not write any other letters discrediting witness Kyle? The Church of Scotland has already intimated that it intends to take no action upon the letter, which would appear to imply that the criticisms offered by Lord Avonside are disputed by the Church, since it has publicly announced that intention to take no action. Can the Secretary of State guarantee that he was not similarly influenced by Lord Avonside possibly discrediting Kyle to him?

Had the Church of Scotland not acted in the way it did, and had it taken any action, however improper, it would, surely, have jeopardised the case of Colin Temple when the Secretary of State heard that one of the witnesses was publicly discredited. Fortunately, the Church did not accept, and does not intend to accept, the inference of discredit against Mr. Kyle.

The timing of the letter, regardless of content, cannot be overlooked. Does the Secretary of State approve of one of his judges writing to the employer of one of the witnesses in a case of this importance and implying discredit on a witness who had gone to court to tell the truth? Is the Secretary of State happy that it can be publicly stated, as it was at the General Assembly of the Church of Scotland on Thursday, 20lh May, 1971, that a letter had been sent to the Church while a case was sub judice, and the Church intended taking no action on the letter?

Is the Secretary of State happy at the thought that, had full knowledge of this letter been made public, members of the public might well be deterred from offering to go to a court of law and agreeing to tell the truth, the whole truth and nothing but the truth in the interests of justice, if they were aware that behind their backs the judge might write to their employers recommending their dismissal on the ground that he thought that their attitude rendered them unfit to hold the posts which they held at the time of giving testimony?

Those are all specific and serious questions to which the Lord Advocate should give direct answers. I urge the Secretary of State to reconsider his decision to take no further action in this case. Here is a boy whose past record shows no violence whatever and who is convicted of a very serious crime on evidence, identification evidence, which is of a type that is unreliable, however honest the belief of the witness giving it. On the other hand, there is a mass of testimony, which I have outlined, that the boy was where he ought to have been on the Wednesday after- noon—working in the approved school. The Secretary of State need not fear that he is doing other than justice if he will now reconsider the matter and recommend a free pardon for this very unfortunate boy.

The Lord Advocate (Mr. Norman Wylie)

I fully recognise the concern which the hon. Member for Central Ayrshire (Mr. Lambie) feels about this matter, and I fully accept the sincerity of the views he has expressed. I would like to say on behalf of my right hon. Friend the Secretary of State, that at no time has he questioned the sincerity of those who have consistently maintained their belief in the innocence of Colin Temple.

It is important to remind the House of the constitutional position of the Secretary of State in a matter of this kind, where a person has been duly convicted and sentenced by a court of law. The primary responsibility of the Secretary of State, as I am sure the hon. Gentleman will accept, is to ensure that the sentence is carried out, because of the constitutional necessity that decisions of the courts—subject, of course, to appeal—are final determinations. To interfere with the verdict of a jury is a step which cannot at any time lightly be undertaken, and I have no doubt that the hon. Gentleman will accept that.

However, to meet exceptional circumstances, the Secretary of State has two sets of extraordinary powers. First, he has the right to recommend the exercise of the Royal prerogative of mercy. Secondly, he has statutory powers under Section 16 of the Criminal Appeal (Scotland) Act, 1926 to refer the case to the High Court of Justiciary. He can do that in either of two ways. He can remit the whole case to be heard and determined as if it were an appeal, or—as in this instance—seek the opinion of the court on points raised by him to assist him in the determination of the petition. These are powers which can be used only in the most exceptional circumstances. If a reference to the High Court is to be made, it can be justified only where some new matter of grave substance has been raised which ought to be the subject of judicial scrutiny before a proper determination of the case can be made.

As the hon. Gentleman has pointed out, the Secretary of State, in this instance, took this exceptional course, with my advice, and I think that he was right in considering that there were exceptional circumstances justifying this course. This is only the sixth occasion on which these powers have been exercised since the Act was passed in 1926.

It is also important to remember the nature of the rôle which the Secretary of State is called upon to play. He is not a judge. He cannot re-try the case or act as a court of appeal. It is not for the Secretary of State to pass his judgment on the innocence or guilt of the petitioner. All that he can do is to consider—and obviously, from what I have said, he must consider carefully—whether he is justified in any particular case in exercising these extraordinary powers.

As the hon. Gentleman has made clear—and I am obliged to him for the fair and moderate way in which he put his case—there is a clash of evidence and of views in this case. It really comes down to this; whether this young man was in the Geilsland Approved School when this serious offence was committed in Glasgow on the afternoon of Wednesday, 22nd April.

Although the hon. Gentleman has related some of the facts, I do not entirely agree with all his observations, and it may be advisable for me to give the House a short resume of the facts. A woman was assaulted on that day, shortly after two o'clock in the afternoon, by a young man in Kelvingrove Park, Glasgow. Her shouts attracted the attention of others, and the young man made good his escape. The police were given a description of the assailant, and a week later, on Tuesday, 28th April, shortly before midday, the police went to the same park, following an anonymous telephone call. There they found the youth, Colin Temple, who fitted the description they had been given. He was on unauthorised absence from the approved school, and the police had been informed of his absence.

I am not sure whether the hon. Gentleman was suggesting that Temple was subjected to any pressure. I do not understand him to have suggested that, except that he made a reference to Temple's being five hours in custody before he admitted the assault. He was not questioned by the police until he was interviewed by the detective-officer in charge of the case, shortly after lunch, at about 2.15 in the afternoon. In the course of his interview with the officer, he admitted his guilt, and gave certain not insignificant circumstantial details surrounding the commission of the offence Thereafter, he took part in an identification parade and was identified as the assailant, not only by the victim of the assault, but by another woman who had gone to her assistance.

After that, as one might expect, he was formally cautioned and charged, and his reply was, "I am sorry now that I did it." When subsequently cautioned and charged at the Bar, in accordance with normal practice, he said, "Say I am sorry." It was on this very substantial evidence that proceedings were instructed on behalf of my predecessor, and upon which the jury convicted, by a majority, notwithstanding evidence adduced by the defence in support of alibi, to which I shall turn in a moment.

On his apprehension, the staff of the approved school were informed, and the headmaster, after making inquiries at the school, took the view, which he has retained ever since, that the boy could not have committed the offence because he must have been present at the school at the time. The headmaster interviewed the boy that night, and on two occasions Temple confessed to him his guilt. He said, "I did it." He was challenged by the headmaster to explain why he had admitted an offence which, in the headmaster's view, he could not have committed. Temple subsequently withdrew the confession in favour of the alibi which, in effect, the headmaster had presented to him. In the headmaster's own words, in cross-examination at the subsequent hearing—and this, I think, fairly sums up the situation—"I broke him down to what I believed to be the truth." At the trial, the headmaster was not adduced as a witness, for the reasons the hon. Gentleman has mentioned, but the defence of alibi was supported in particular by, in addition to the accused, the witness Ruxton, who was the building supervisor supervising the squad of boys engaged on building work that afternoon. Mr. Ruxton deponed to the fact that he saw Temple in the course of the afternoon in question. It is important that, notwithstanding that evidence, the jury took the view by majority that that evidence fell to be rejected.

I do not want to comment on the inadequacy of the preparations of this boy's defence, but I will say that counsel for the accused at the time adduced this evidence and may well have exercised a wise discretion in not seeking to bolster it up by adducing other boys who were on the list of witnesses in the special defence of alibi. The alibi defence was squarely before the jury at the time and was, by a majority, rejected.

As the hon. Gentleman has said, an appeal was lodged and an application made to the High Court to hear further evidence in support of the alibi which had been rejected. The court took the view that the further evidence it was sought to be adduced was not of a nature which it could be said would have affected the jury's decision, and the appeal was dismissed on 21st October, 1970.

Thereafter, a petition was presented to the Secretary of State in which he was asked to refer the case to the Court of Criminal Appeal under Section 16, in order that evidence of additional witnesses might be heard, or to have further inquiries made with a view to providing a remedy for any miscarriage of justice disclosed.

It is fair to say that the most important matters raised in the petition, which was carefully considered before the decision was reached, were the availability of other witnesses in support of the alibi, the evidence of the headmaster, who had not been called at the trial, and the belief of one of the witnesses, Mrs. Connelly, who had already given evidence but had not spoken to identification, that Temple was not the assailant. I say this of her evidence at the trial: I do not think that it would have been possible for defence counsel to have known in advance what her attitude on identification was. She was not, as I recollect it, a witness at the identification parade. She was not asked about identification and in the ordinary way at least it would not be appropriate for defence counsel to ask a witness on a question of identification when he did not know what her answer was likely to be.

In any event, after very careful consideration, and in consultation with my- self, my right hon. Friend decided that the case could only be resolved by having this further evidence considered by the court. He accordingly took the exceptional step of asking the opinion of the court on the effect of this further evidence.

Evidence consisting of seven pupils or former pupils of the approved school, two members of the staff, including the headmaster, two police officers and four other persons, including Mrs. Connelly, connected with the case, was subsequently heard in March before a judge appointed for this purpose by the court. The presiding judge subsequently reported to the court and my right hon. Friend was informed that, in the opinion of the court, no grounds for interference with the verdict had been established. I should add that, although no submissions were made at the conclusion of the hearing, a further written submission was made on Temple's behalf commenting on consideration raised by the case at the hearing.

In the light of the Crown evidence, which was accepted, and the defence evidence in support of alibi, which was rejected by the majority of the jury at the trial, it would clearly require very substantial further evidence to justify any interference with the verdict of the jury.

Geilsland School is an open establishment. The crucial time was 2.15 p.m. on 22nd April at Kelvingrove Park. It might be convenient if I refer briefly, as the hon. Gentleman did, to the evidence in support of the alibi which was before the jury and the presiding judge at the subsequent hearing.

There was evidence that Temple had been seen at lunch at about 12.30 p.m., that he was not missed from roll calls at 1.30 p.m. and 4.50 p.m., although, naturally enough, the staff concerned could not remember specifically seeing him. If he was at the school that afternoon, he was working in a work party along with another boy, but largely out of sight of Mr. Ruxton, the building supervisor. A visitor to the school saw a boy at the 4.50 roll call who, from his appearance, he subsequently believed to be Temple. There was evidence of a later meeting between the boy and a member of the staff, and several of the boys, including the work partner, spoke to his presence that afternoon. There was also a reference by Temple at his trial to an event occurring at the school some time during the afternoon of that day. I must emphasise again that it is not for my right hon. Friend to judge this case. He could not hear the evidence let alone assess the weight which has to be attached to it. The fact that there are several persons firmly convinced of Temple's innocence does not, of course, necessarily mean that the boy was innocent. When a person has been duly convicted after due process of law then, as I have said, the Secretary of State's only function is to decide whether he would be justified in recommending Her Majesty to exercise the Royal Prerogative of mercy. In this matter obviously the view of the court was a substantial factor, and after the most careful review of all the relevant considerations—I emphasise that because it was not only the view expressed by the court which was the only or the deciding factor—my right hon. Friend came to the conclusion that he would not be justified in making such a recommendation.

I want again to say, because I would not like there to be any misunderstanding, that it is not a question of a group of people conspiring to put up a false case which would result in a miscarriage of justice. Sometimes people do firmly believe that a jury has made a mistake and that an accused or convicted person is innocent. The real test here is what my right hon. Friend can do about that. He cannot just look at one side of the picture. He has to look at the whole evidence and, as I have said, he has to be very careful if he is going to interfere with the verdict of the jury. It was in the light of these considerations that, after most anxious and careful thought, my right hon. Friend reluctantly came to the conclusion that it was not possible for him to make a recommendation in this case.