To save a life, should police break the rules?
A true-life drama about the murder of a young woman asks if our system favours suspect over victim, writes Chris Harvey
Ariveting true-life drama which begins on ITV tonight poses a blistering question: is Britain’s police and criminal justice system set up to protect the rights of a suspect over those of an innocent 22-year-old abducted on her way home? And, in the words of Jeff Pope, the UK’S premier factual dramatist: “How do we want the police to behave if, god forbid, it was one of our loved ones that had gone missing? Is this how we want our police to be?”
A Confession, starring Martin Freeman, tells, over six episodes, the agonising story of the hunt for Sian O’callaghan, who disappeared in the early hours of March 19 2011, after leaving a Swindon nightclub. She had become separated from friends, but it was only an 800m walk to the flat she shared with her boyfriend, Kevin Reape. Sian never made it home.
CCTV showed she had vanished in a blind spot between cameras, and a flash of car headlights suggested she had been driven away. But as the clock ticked down on the chances of Sian being found alive, the investigation, led by detective Steve Fulcher (played by Freeman), had a breakthrough. A patrol car that had been in the vicinity was fitted with automatic number plate recognition (ANPR) technology, which made Christopher Halliwell, a taxi driver, the primary suspect.
In the book Fulcher later wrote about the events, he detailed the series of decisions that ultimately led to him being charged with gross misconduct and leaving the police. Operating within what he believed to be an ever-diminishing window of opportunity to save Sian if she was being held hostage, he elected to put Halliwell under surveillance rather than arrest him and have him invoke his right to silence, which would almost certainly lead to Sian’s death.
Five days into the search, as media pressure mounted
and the local community united to help find her, Halliwell was judged a suicide risk and a decision was made to arrest him. In what is known as a safety or urgent interview – essentially to save someone’s life – conducted without a solicitor at the scene of his arrest, Halliwell returned “no comment” to all questions, and under the guidelines of the Police and Criminal Evidence Act (PACE) had to be taken to a police station and allowed access to a solicitor. Fulcher instead directed that he be brought to the location where he believed Sian had most likely been taken and in a second urgent interview asked Halliwell, without caution: “Tell me where Sian is?” According to Fulcher, Halliwell replied: “Have you got a car? We’ll go.” He took Fulcher to the site where he had moved Sian’s body after murdering her. It was miles from where the police had been searching and Fulcher was struck by the thought: “We would never have found her.”
Halliwell told Fulcher how he had killed Sian, and then added: “You and I should have a chat.” He took him to the burial site of a second victim – Becky Godden-edwards, who was aged 20 when last seen in 2002 (Halliwell claimed he had killed her in 2003).
Then, for Fulcher, the case began to unravel. Halliwell was taken to a police station and, after seeing a solicitor, offered “no comment” when interviewed under caution. He would later plead not guilty to Sian’s murder, but DNA evidence found on her body, as well as her blood in his car, tied him to the murder, and he subsequently changed his plea to guilty.
The charge against Halliwell for the killing of Becky was dropped, however, after a judge ruled his earlier confession inadmissible as evidence because Fulcher had breached Halliwell’s rights by failing to caution him and denying him a solicitor.
“What’s incomprehensible almost is why the police felt the need to instigate disciplinary proceedings against Fulcher for gross misconduct,” says Pope, who won Baftas for his work on See No Evil: The Moors Murders (2006) and Philomena (2013), which he co-wrote with Steve Coogan.
“What the disciplinary proceedings in effect said was, PACE is inviolable and there are no circumstances under which it can be breached. Fulcher argued that his priority was Sian, not Christopher Halliwell, but the police seem to be saying that the priority had to be the other way around.” The clear implication of the official response to Fulcher’s actions, he says, is that detectives will now be very wary of doing what Fulcher did.
“I do want to leave to the audience, thinking ‘did Fulcher do the right thing or not?’,” says Pope. “On one side, he perhaps stretched the idea in his mind that Sian was still alive. It was certainly a very, very small chance that she was still alive at the point that he went to that car park and interviewed Halliwell in person, but if it was my daughter, and there was a two per cent chance that she was still alive, I’d want that chance taken. Isn’t that more important than Christopher Halliwell’s rights in that situation?
“What the drama asks is, have we arrived at a point now in the history of policing when the pendulum has swung too far in favour of the suspect?”
Sian’s mother, Elaine O’callaghan (played by Siobhan Finneran), says she takes a measured view of Fulcher’s actions. “We wanted Steve to do whatever he could to get answers about what happened to Sian, like anybody would, but at the same time, once finding out what had actually taken place, I also fully understood that there would be legal ramifications.
“Homicide (I still struggle to say the “m” word),” she adds, “comes with so much to deal with on top of the enormity of the loss.
“I feel it’s important that people see that when hit with trauma and grief we all handle it in our own way. There is no right or wrong way to feel, there is no stereotype. It is instinctive, self-protecting, raw and overwhelming; it’s OK to cope in whatever way gets you through it and allows you to move forward.”
Paul Andrew Williams, the director, was influenced in style by documentaries such as 24 Hours in Police Custody, and uses hand-held cameras throughout. Both director and screenwriter raise the issue of answering “no comment” to all questions – which anyone who has watched fly-on-the-wall documentaries on crime in this country will recognise as common.
“Solicitors will almost universally advise their client to offer no comment in order to not further incriminate him or herself,” says Pope, “so what you get is a situation where the art of a police officer being able to sit face to face with a suspect and question them and try to form an opinion as to that person’s guilt, or to gain information
‘What was the purpose of [solicitors] trying to fight for Halliwell’s innocence? That’s what I struggle with’
which could clear or incriminate that person, that’s been taken off the table.
“Really, all police officers have to deal with now in terms of criminal investigation is passive data, phone records, CCTV, that kind of thing. It’s also a fact that since PACE came in [in 1984], there are now more solicitors in the UK than police officers.”
Pope wonders if it would be such an impediment to justice if England and Wales had an inquisitorial legal system, where there is not an automatic right to silence, as in France and Italy, rather than the adversarial system it has at present.
“I’ve always slightly questioned how grand and theatrical we’ve become. I think justice should be about truth, that’s what I think is the most important thing, not who performs best on the day in court.
“I absolutely agree with the principle that everyone should have their case presented in court, I’m not suggesting Halliwell should have been shunted into court like a Soviet show trial, but where’s the common sense?”
Pope adds: “What was the purpose of [solicitors] trying to fight for Halliwell’s innocence? That’s what I struggle with – there’s something weird about a system which says we’re fighting for this man’s innocence … incredibly skilful, highly trained advocates in court fighting for the innocence of Christopher Halliwell, who has confessed to two murders and taken the police to the bodies, what’s that about?
“Halliwell’s team were not too far away from having him walk free.”
A Confession starts on ITV tonight at 9pm