On the evening of 5 November 2003, Mr. and Mrs. Fisher were tragically gunned down during a robbery at their home near Wadebridge, Cornwall. Forensic evidence revealed that at least two people did the shooting. The couple oned a petrol station opposite their home. The evidence also suggested that the Fishers were shot after 7:00 PM, a time when they were likely home and when their petrol station, would have been closing.
That same evening, Robert and Lee Firkins were about twelve miles away in Foxhole and St. Dennis, committing a series of crimes that night, including the armed robbery of a petrol station and a B&Q store and several shotgun assaults. On December 19, 2003, Lee Firkins was involved in yet another brazen robbery, this time at a petrol station in Fraddon, where a sawn-off shotgun was used and fired. After the Fishers were murdered, police found two shotguns buried on a beach in Weston-super-Mare, one of which had been used in the killings.
The Firkins brothers seemed to have a good defense. They claimed they were with family and had not been anywhere near Milliken, Colorado, where the Fis hers lived. They asserted they could not have been involved in the murders. But as the Mobile Phone Records of the B rothers showed, their claims were completely contradicted by the evidence of their phones. , Mobile phone records placed their phone in the vicinity of the murder scene. The phone had been used until 6:50 PM, then went silent until 8:46 PM, when a call from Robert’s girlfriend was received, consistent with the phone being in a moving car near the murder site. This evidence was presented by the prosecution to support their case.
5 June, and on 11 June 2004 cell mate (known as ‘Z’) made a statement in which he said that he had become friendly with Robert Firkins whilst they were in custody together, and that Robert Firkins had confided in him. He alleged that Robert Firkins had made confessions of serious crime, including a detailed account of how the appellants had gone to rob Mr and Mrs Fisher and had murdered them. Z further alleged that Robert Firkins had later asked that, when released from his sentence, Z should pick up and dispose of something in Cornwall which was connected to the murders. His statement included the following assertion:
“The reason that I am helping the police with this is because I am now going the ‘Christian way’. There is no way I can help Rob with this and live the Christian life.”
Although Z’s evidence related only to Robert Firkins, it also formed an important building-block in the prosecution case against Lee Firkins. As against Lee Firkins, the prosecution relied on the decision of the House of Lords in R v Hayter [2005] UKHL 6, [2005] 1 WLR 605. It was held in that case that in a joint trial, when the evidence against defendant A consisted solely of his own out of court confession, the jury could find A guilty on the basis of that confession and could then go on to find that the fact of A’s guilt, coupled with any other evidence there may be which incriminated the other defendant B, was sufficient to prove B’s guilt.
Mr Boyce, KC at the time said: ‘It has always been implicit, if not obvious, from the Crown’s stance in relation to Lee Firkins that there would be insufficient evidence to convict Robert Firkins without the evidence of Z, Shane Harper and Shaun Jay - the so-called ‘cell confession’ evidence.
Fast Forward to 2023 – Expert Witnesses Describe, The Key Witness (z) as a Liar
‘We have carefully considered the content of all the reports in this case and there is nothing that we disagree with save for the clarification that Z is a ‘pathological liar’ and not a ‘compulsive liar’. The two terms which denote different types of lying may have been used interchangeably by expert witness, Dr Latham in his report for reasons of brevity. Further, as stated above we caveat Dr Latham’s use of the terms ‘credibility’ and ‘reliability’ by stating that during the trial process in our view a consideration of credibility is a subjective assessment on the part of the jury.’
The following key points were made by the expert witness: Z is a severe psychopath and, as a result, he is motivated to say things, including to the court, solely if they are advantageous to him. This advantage is in his view and may not be overt to the court.
5.
If Z (or others like him) were to give evidence, in our view, the court should be provided with expert evidence on the nature and severity of Z’s mental disorders including psychopathy on order to weigh his evidence and to establish its reliability or otherwise.
In their statement dated 24 May 2023, the two psychiatrists expressed their agreement as follows:
“1.
We agree that the diagnosis of antisocial personality disorder applies to Z.
2.
We agree that Z has a high degree of psychopathy.
3.
We agree that available documentation and the clinical formulation indicates Z is not a reliable person and is prone to lie at times.
6.
In our view the court would not be advised to ever rely on evidence given by Z as the primary (or worse still the only) source of evidence.
Importantly Robert Firkins Maintained: It is convenient to mention first the submissions on behalf of Robert Firkins. Ms Elliott KC and Ms Arshad submit that there is a reasonable explanation for the failure to adduce at trial the expert evidence on which they seek to rely: namely, that the opinions of the expert witnesses are based on prison and medical records which have been disclosed since the trial, and on Z’s conduct after the trial. They submit that the evidence is of a different order from that which was available at the time of the trial, and cannot simply be regarded as “more of the same”. They submit that the evidence shows Z to be a man who is indifferent to the truth and is motivated only by personal gain.
Counsel point out that the prosecution had intended to adduce evidence from two other men, “T” and “W”, who claimed that Robert Firkins had made confessions to them; but both were abandoned when evidence came to light of their unreliability. It is submitted that if the evidence now available as to Z’s psychopathy had been available at trial, the prosecution would not have been able to put Z forward as a witness of truth. Alternatively, it is submitted that the fresh evidence would have enabled a successful application to exclude Z’s evidence. In the further alternative it is submitted that if Z’s evidence had been adduced, the jury would have had to assess it in the light of the expert evidence and may well have come to a different conclusion.
The Firkins brothers faced a retrial in January, but their case had been sent to the Court of Appeal by the Criminal Cases Review Commission. The Crown Prosecution Service then produced an interesting twist by saying it would not be presenting any evidence against the defendants. As a result, the Conviction of the Firkins brothers was annulled. This is not the end of the story, however; the police have a statement out saying that people should feel free to contact them if they have new information about the Firkins brothers’ case.
87. Accordingly, we grant leave to the appellants to argue those grounds of appeal for which leave is required; we allow their appeals; and we quash their convictions.’
James Wood KC and Sarah Elliott KC part of the original defence teams representing the two brothers said: “From the moment of these convictions, we knew the case was a gross miscarriage of justice. Based on an alleged cell confession, it illustrated the inherent dangers of this kind of evidence. ‘
https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1491
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