Edinburgh, 19 September 2025, Annual Colloquium on Miscarriages of Justice

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19th September 2025

At the Annual Colloquium, the Rt Hon Sir Bernard McCloskey delivered a paper on the murder in 1952 of Patricia Curran, the daughter of a senior Northern Irish judge and the related trial of Ian Hay Gordon, a Scottish airman, for her murder. He has kindly made available the text of his talk, which you will find below.

MURDER MOST FOUL: THE BELFAST JUDGE’S DAUGHTER

AND THE SCOTTISH RAF ENGINEER

THE TRIAL AND TALE OF IAIN HAY GORDON

AND THE CURIOUS COINCIDENCE OF TWO

LORDS CHIEF JUSTICE OF NORTHERN IRELAND

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Franco – British Lawyers Society

Edinburgh

19 September 2025

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The Rt Hon Lord Justice McCloskey

Court of Judicature of Northern Ireland

GLOSSARY

Appellant: Iain Hay Gordon

COA: Court of Appeal (NI)**

LCJ: Lord Chief Justice

LJ: Lord Justice of Appeal

NAAFI: Navy, Army and Air Force Institutes canteen

NICOA: **

RAF: Royal Air Force

RAF SIB: Royal Air Force Special Investigations Branch

RUC: Royal Ulster Constabulary (the NI police force)

Voir dire: a trial within a trial of a legal issue, normally the admissibility in of certain evidence, in the absence of the jury

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DRAMATIS PERSONAE

This is a tale of -

A senior Northern Irish judge (The Rt Hon Sir Launcelot Curran PC)
His 19 years old daughter (Patricia Curran)
Her brother (Desmond Curran)
A Scotsman (Iain Hay Gordon of the RAF)
An Englishman (Detective Superintendent Capstick)
A NI Lord Chief Justice (Lord MacDermott LCJ)
A later NI LCJ (Lord Carswell LCJ)

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OVERVIEW

Shortly after 2 am on 13 November 1952 the lifeless body of Patricia Doris Curran, a university student aged 19 years, was found lying in shrubbery some 40 feet from the driveway leading to her family house in Whiteabbey, Co Antrim, a suburb of the capital city of N. Ireland, Belfast. Her death had been caused by multiple stab wounds inflicted by a sharp implement. Iain Hay Gordon was subsequently charged with her murder.

His trial commenced on 2 March 1953 at the County Antrim Spring Assizes before Lord MacDermott LCJ and a jury. At its conclusion on 7 March 1953 the jury returned a special verdict under the Trial of Lunatics Act 1883 that he was guilty of the act charged against him but was insane at the time of commission. No appeal lay at that time against such a special verdict.

He was sentenced by an order to be kept in strict custody until Her Majesty’s pleasure should be known and committed in consequence to Muckamore Hospital, Co Antrim, an institution for the mentally disordered, from which he was released in 1960.

A GRUESOME DISCOVERY

Patricia Curran, the only daughter of Mr Justice Curran, one of four siblings, was a student aged 19 years, in the first year of a degree course at Queen’s University, Belfast. She lived at the family home Glen House, Whiteabbey, a house situated at the end of a long, dark driveway. The driveway served as access to a couple of houses, the area through which it ran being known as the Glen. Miss Curran travelled daily to and from Belfast, generally by bus.

On 12 November 1952 she spent the day in Belfast and had afternoon tea in the city centre, some three miles away, with a fellow-student John Steel. He accompanied her to Smithfield bus station and saw her depart on the 5 pm bus for Whiteabbey. She was seen by passengers on the bus to get off at a stop in Whiteabbey at 5.20 pm approximately and turn in the direction of her home.

A newspaper delivery boy, George Chambers, aged eleven years, also saw her walking towards the gateway to the drive leading to Glen House. A few minutes later he himself proceeded up that drive in the course of his paper round. As he went up the drive he heard a rustling noise in the bushes which sounded like birds in the leaves. At about this time he heard the noise of the factory horn which blew at 5.45 pm each evening. On his way back down the drive he heard a noise like somebody’s foot in the leaves, louder than the first sound, which frightened him so that he took to his heels and ran down the drive.

Patricia’s parents became anxious as the evening passed and she did not return home. They began to make inquiries and instituted a search of the grounds along the driveway to Glen House. The police were contacted and Constable Rutherford arrived at the Glen shortly after 2am. He encountered Mr Justice Curran in the driveway and was just walking forward to meet him when he heard shouting from the Glen. They both ran towards the source of the shouts and saw the light of a torch in the shrubbery adjoining the drive. When they reached the spot they found Patricia’s body lying on its back at the foot of a tree, some 40 feet from the driveway. Her brother Desmond Curran was kneeling or leaning over the body. At that point Mr and Mrs Malcolm Davison, family friends of the Currans, arrived on the scene by car, having received a telephone call from Mr Justice Curran at about 1.35 or 1.40 am. They thought that Patricia might still be alive, Desmond thought that she was possibly breathing and they lifted her body into the car and took it to the residence in Whiteabbey of Dr Wilson, the family doctor.

Dr Wilson examined the body at about 2.20 and ascertained that Patricia was dead. He saw a number of small holes in her jumper, which was saturated in blood, and on his cursory examination had the impression that she had been shot with a shotgun. He formed the opinion that she had been dead for a period, which was at least four hours and might have been as long as twelve hours.

The body was subsequently examined by Dr AL Wells, a registrar in pathology at the Royal Victoria Hospital. He arrived at Dr Wilson’s surgery at 5 am on 13 November and took charge of it. It was almost fully clothed, the right glove, hat, scarf and shoes being missing. The coat was open and the bottom button was missing from it. A piece of lining material was attached to the button when it was later found, and it appeared that it had been torn from the coat. A button was also missing from the cardigan. He commenced his examination on arrival and found the entire musculature fixed in rigor mortis. He formed the opinion that death had taken place about twelve hours beforehand (an estimate which was not challenged at the trial). Dr Wells carried out a post-mortem examination commencing at 3pm the same day. He found a total of 37 stab wounds on the body, 21 on the front of the chest. Eight of the stab wounds were so serious that any one of them could have been fatal. One was so violent that it fractured a rib. There were two facial wounds which appeared to have been caused by direct violence from a blunt instrument, by which Dr Wells meant a fist or a boot. He also found bruising and abrasions on the neck.

The place where the body was found was some 260 yards from the road. It was about 40 feet from the edge of the driveway, and the evidence showed that it had been dragged from the driveway through the shrubbery to that place. Patricia Curran’s handbag and woollen hat and a portfolio in which she carried books and papers were found close to the edge of the driveway.

ENTER IAIN HAY GORDON

Mrs Mary Jackson, the wife of the Senior Staff Officer of 67 Group of the Royal Air Force, which was based at Edenmore, a large house at Whiteabbey about half a mile from the entrance to the Glen, gave evidence that she was returning from Whiteabbey village about 5.10 pm on 12 November 1952. She dismounted from her bicycle at the gate to Edenmore and commenced to wheel it up the drive. Some 15 or 20 yards from the gate she met an airman whom she recognised as the appellant walking towards the gate. He was a leading aircraftman stationed on the base, and she had known him for some time.

Mrs Hetty Lyttle testified that having left her place of work in the factory in Whiteabbey at about 6 pm on 12 November 1952 she saw a man come out of the Glen gate, hesitate and come past her, walking countrywards. She described him in evidence as thin and pale and wearing a “dust coat”, by which she apparently meant a light raincoat. On 23 January 1953 she attended an identification parade composed of eight men from the RAF base dressed in light raincoats or light overcoats. Mrs Lyttle did not pick out anyone at first but asked for each of the men to walk past her. She then said, “One chap looks like him” and put her hand on Gordon’s shoulder. [When asked by the judge at the conclusion of her evidence if she could say whether Gordon was the man whom she had seen on 12 November or if he was only like the man, she replied “Well, I think he was the man.”]

THE INTERVIEWS OF IAIN HAY GORDON

It was obvious from the outset that this was a case of murder most foul: a brutal murder, no less.

The police mounted a substantial investigation, interviewing a large number of people. The RAF Special Investigation Branch (“SIB”) also conducted an investigation among the RAF personnel on the base at Edenmore. SIB staff interviewed airmen on the base on 14 November, asking them to give an account of their movements between 5 and 6 pm on 12 November.

Gordon told Sergeant Leathem of the RUC that he had been in Whiteabbey Post Office at 4.30 pm. He returned to Edenmore and was in the dining hall between 5 pm and 5.10 pm. He walked from there to the billet with Corporal Connor and remained in the billet for some time, then went to his office in the main building. He remained there for some time and then came down to the NAAFI for a cup of tea.

Gordon was interviewed by police officers on three further occasions in November and December 1952, on all of which he gave essentially the same account: he was having tea in the Mess around 5 pm and then returned to his billet, remaining there for around two hours until going for another cup of tea. He also claimed to have been with one Corporal Connor in the Mess. (Corporal Connor, in his sworn evidence at the trial, not only declined to support this account of Gordon, but deposed that Gordon had asked him to give a false account on his behalf: see infra).

A series of police interviews took place between 13 and 15 January 1953, at the conclusion of which the appellant made a written statement, by the terms of which he confessed to carrying out the murder. The defence objected to the admission of the several statements made in these interviews, and the judge held a voir dire in the absence of the jury, at the conclusion of which he gave a ruling admitting them all in evidence. They were then all proved before the jury

A long and detailed written statement of the Appellant contained a denial that he had murdered Miss Curran and an account of his movements which placed him in the camp from 5 pm onwards on 12 November. In one important respect, however, there was an admission by him that he lied to the police earlier about being with Connor, albeit he claimed that Connor was the instigator of the untruth.

Sometime later, Capstick informed CI Kennedy “Gordon has told me that he will now tell us the truth about the murder.” CI Kennedy said that he was glad to hear that he was going to tell the truth, whereupon the appellant said, “I did it when in a black-out.” CI Kennedy cautioned him and commenced to take a written statement from him. Mr Capstick wrote out the caution, which the appellant signed. Capstick then wrote the body of the statement, which he and CI Kennedy both stated to the judge was taken at the dictation of the appellant.

THE CONFESSION

This was a confession to the murder, in the following terms (in part):

“I left the camp at Edenmore shortly after 4 p.m. on Wednesday afternoon, the 12th of November, 1952, to deliver the mail to Whiteabbey Post Office. I was in there from five to ten minutes, then went to Quiery’s paper shop in the main street to collect the camp newspapers. I would not be very long in there. I believe I called in at the bookies – approximately opposite Quiery’s but off the main road. I placed a bet there on a horse for one of the airmen at the camp. I forget his name. I think I then went back to the camp with the newspapers. I probably had my tea at about 5 p.m. It took me about five minutes for my tea. I think I then changed into my civilian wear of sports coat and flannels. I then walked back alone to Whiteabbey and met Patricia Curran between the Glen and Whiteabbey Post Office. She said to me, ‘Hello, Iain’, or something like that. I said, ‘Hello, Patricia’. We had a short general conversation. I forget what we talked about but she asked me to escort her to her home up the Glen. I agreed to do so because it was fairly dark and there was none of the family at the gate to the Glen. I can understand anyone being afraid of going up the Glen in the dark, because the light is completely cut out because the trees meet at the top. I noticed Patricia was carrying a handbag and something else – I just forget what it was. It appeared to be wrapped up whatever it was, books or something. She was wearing a yellow hat. It was just about the Glen entrance where she first spoke to me. We both walked up the Glen together and I think I was on her left hand side. After we had walked a few yards, I either held her left hand or arm as we walked along. She did not object and was quite cheerful. We carried on walking up the Glen until we came to the spot where the street lamps’ light does not reach. It was quite dark there and I said to Patricia: ‘Do you mind if I kiss you?’ or words to that effect. We stopped walking and stood on the grass verge on the left hand side of the drive. She laid her things on the grass and I think she laid her hat there as well. Before she did this she was not keen on me giving her a kiss, but consented in the end. I kissed her once or twice to begin with and she did not object. She then asked me to continue escorting her up the drive. I did not do so as I found I could not stop kissing her. As I was kissing her I let my hand slip down her body between her coat and her clothes. Her coat was open and my hand may have touched her breast, but I am not sure. She struggled and said: ‘Don’t, don’t, you beast’, or something like that. I struggled with her and she said to me: ‘Let me go or I will tell my father.’ I then lost control of myself and Patricia fell down on the grass sobbing. She appear to have fainted because she went limp. I am a bit hazy about what happened next but I probably pulled the body of Patricia through the bushes to hide it. I dragged her by her arms or hands, but I cannot remember. Even before this happened, I do not think I was capable of knowing what I was doing. I was confused at the time and believe I stabbed her once or twice with my service knife. I had been carrying this in my trouser pocket…”

GORDON’S TRIAL

There was evidence that the appellant’s clothing was examined after his arrest in January 1953. Human bloodstains were found inside the right trouser pocket. Stains inside the left pocket and on the left leg gave a presumptive reaction for blood, which was less conclusive. The general appearance of the stain on the leg suggested that the area had been washed. There was a spot of blood on one of his ties and a human bloodstain on the ball of the left thumb of his glove.

The two ladies whose evidence ius summarised in paras 11 & 12 above testified for the prosecution

Corporal Connor not only declined to support Gordon’s claims (see para 16 above) but deposed that Gordon had asked him to give a false account on his behalf: see infra). He testified that he did not have tea with Gordon on the afternoon of 12 November and did not see him between 5pm and 6.30pm that day. Gordon, he testified, had spoken to him before the SIB interviewed him on 14 November and asked him to tell them that he and Gordon had had had tea together between 5 pm and 5.10pm on 12 November. He did not give a reason for his request.

Aircraftman Scott told the court that on one of the days following the murder he was waiting with Gordon and others outside the Station Warrant Officer’s office waiting to be interviewed about the murder. Gordon said to the others words to the effect “Would you tell the inspectors that you seen me on the night of the 12th of November?” Scott said that he replied that he could not, as he had not seen him on that evening.

LAC Cuthbert (RAF) testified that Gordon was in the group waiting to be interviewed when he said to the others “You’d think that you blokes would stand up and say that you saw me.” A general discussion followed, at the end of which someone said “Well, it’s too serious a matter to lie about.”

Aircraftman Walsh (RAF) testified that he had finished work at 5 pm on 12 November, then had tea and played table tennis until about 6.15 to 6.45 pm. He did not see the appellant during that time. Some two or three weeks later he was walking back to camp with Gordon from a supper saloon in Whiteabbey. Gordon asked him if he had seen him on the evening of 12 November. The witness replied that he had not, whereupon Gordon said to him that if he had a friend, a very good friend, and he was in trouble, even serious trouble, he would be prepared to lie for him.

THE CONFESSION ADMITTED IN EVIDENCE

It became clear in D/I Capstick’s cross-examination that early police interviews of Gordon had, inter alia, been directed towards Gordon’s sexual proclivities, specifically suggestions about homosexual tendencies. Oppression was the central theme of this questioning at the trial. Capstick steadfastly denied this.

A voir dire ensued. At the conclusion of the prosecution case, Gordon’s counsel submitted to the judge that none of the statements should be admitted, on the ground that they were not voluntary, since they were the product of inducement, fear and pressure.

After hearing from the Crown the judge admitted in evidence all the statements, verbal and written, with some limited exceptions the trial judge ruled that the confession taken on 15 January had not been procured by interrogation. He held that it was not unfair that the appellant did not have an RAF officer present, in the circumstances of the case. He rejected the contention that in the interview on the morning of 15 January Mr Capstick had brought up sexual matters in order to put pressure on the appellant on the basis that if he made a full and true statement about the murder the facts about his sexual life would not have to be made public. That allegation had been denied and the judge held that there was no substance in it. The judge was satisfied that the confession as a whole was a voluntary statement.

The trial judge ruled as follows:

“I, therefore, think that this statement [the confession] is admissible as a voluntary statement, and I see no reason to think that it was taken unfairly or in a manner, which, in the exercise of my discretion, would justify me in excluding it.”

Having so ruled in relation to the main statement, the judge held that the other written statements and casual statements, with some limited exceptions, were all admissible. The trial proceeded and the statements which had been admitted were duly proved before the jury.

THE DEFENCE CASE

The trial judge’s ruling admitting Gordon’s confession statement in evidence was decisive both for the conduct of the defence case and the jury verdict which followed. The defence called a number of witnesses, whose evidence was largely directed towards establishing the defence of insanity which the jury in the end accepted. The appellant did not give evidence.

The evidence of one defence witness requires some detailed consideration. Dr Rossiter Lewis, a consultant psychiatrist, was called on the issue of the appellant’s mental condition. He expressed the opinion that the appellant was suffering from the disease of the mind known as schizophrenia, together with a condition named hypoglycaemia. He concluded further that on 12 November 1952, and also at the time of his examination on 8 and 9 February 1953, he was suffering from a defect of reason due to disease of the mind.

An essential part of Dr Lewis’ investigation was to establish to what extent the appellant’s memory of an incident which he had forgotten could be restored. To that end he administered thiopentone, a drug then popularly known as the truth drug. By this stage of the trial the defence had ceased to dispute that the appellant had killed Patricia Curran and were concentrating on persuading the jury to return a verdict of insanity. Certainly during his cross-examination by the Attorney-General Dr Lewis recounted what the appellant told him he remembered as being a correct account of what had in fact occurred.

Dr Lewis also drew attention to to the relationship between the schizophrenia and hypoglycaemia from which he diagnosed the appellant to have been

THE JURY VERDICT

The Crown called one medical witness in rebuttal. Closing speeches followed, then the judge summed up to the jury and sent them out to consider their verdict. They returned after an absence of two hours with a verdict which they recorded as “Guilty but Insane.” The judge ordered that the appellant be kept in strict custody until Her Majesty’s pleasure should be known.

THE NEXT TWO DECADES

Gordon was sent to Holywell Hospital in Antrim to serve his time at Her Majesty’s Pleasure. It is telling that during his seven-year stay in Antrim he received no treatment for his imaginary condition.

Gordon spent his first year in a closed ward at Holywell where the medical director Dr Gilbert Smith and his chief nursing officer Donald Gilchrist kept him under close observation. Pretty soon both agreed that no matter how he came to be in their care Gordon was not a lunatic and they had no treatment to offer him. Nor could they see in this immature and confused young man any sign of the disciplined criminal mind who had, a jury had found, committed a most horrific assault on a young woman, and managed to conceal every trace of evidence linking him to the crime.

He was coping reasonably with the trauma of being wrongfully convicted of murder – that was as far as it went.” Outside Holywell, Gordon’s mother and her friend Dorothy Turtle were campaigning for his release, and this bore fruit in September 1960 when a visitor from the Home Office in London instructed Gordon to go home to Scotland. There was a flat for him in Glasgow and a job as a warehouse man. Henceforth he would be known as John Gordon and was forbidden to talk to anyone about what had happened to him.

Another 40 years would pass before his appeal was heard. In the interim, on October 13, 1969, Gordon wrote to Prime Minister Wilson. The typed note states:

“You will recall that I spoke to you for a few minutes as you were leaving the St Mungo Halls, Glasgow, on Friday evening and you suggested that I should write to you. On Saturday March 7th, 1953, I was found guilty but insane of the murder of Miss Patricia Curran, daughter of Mr Justice Curran which took place on 12th November 1952…”

I was released in August 1960 and since then, supported by my family and friends, I have been seeking a re-examination into this case…

The Attorney General Mr Elwyn Jones, the Lord Chancellor, Lord Gardiner, Mr Tom Sergeant, Secretary of Justice, Mr Jeremy Thorpe, leader of the Liberal Party, and the distinguished psychiatrist Dr Desmond Curran have implicit faith in my innocence and there has been some recent correspondence on this matter between a Mrs Turtle and the Home Secretary Mr Callaghan and Lord Stonham… To us this is a case of basic human justice and I feel that I cannot have any peace of mind unless my name is cleared. For this reason I am appealing to you.”

THE MURDER CONVICTION QUASHED

Iain Hay Gordon was convicted of Patricia Curran’s murder, in accordance with the law and with all the trappings of due process - trial by jury, a presiding judge – Lord MacDermott, a towering figure in the legal history of NI and beyond - legally represented by two eminent counsel and a solicitor…and so forth.

Some 50 years later, the law came to his rescue. There were five major milestones, in this respect. FIRST, the Westminster Parliament introduced legislation, in the form of the Criminal Appeal Act 1995, section 10.

SECOND, The appellant made an application in 1998 to the Criminal Cases Review Commission (the Commission), seeking to have his case referred to the NICOA with the object of having the jury’s verdict reviewed. The Commission doubted whether it had statutory power to refer such a case to the court under section 10 of the 1995 Act and sought the assistance of the NICOA by referring to it specific questions relating to its jurisdiction.

The NICOA, in 1998, decided that the Commission did not have power to refer to the court a special verdict given under the 1883 Act.

THIRD, Parliament then amended the law by the enactment of the Criminal Cases Review (Insanity) Act 1999. FOURTH, The Commission then referred the case (on 25 July 2000) to the NICOA. By virtue of section 3(1) of the 1999 Act the reference was to be treated for all purposes as an appeal by the appellant under section 12 of the Criminal Appeal (Northern Ireland) Act 1980. Under section 12(2) of the latter Act the court is to allow an appeal if it thinks that the conviction is unsafe and dismiss it in any other case. This was the first occasion on which an appellate court had occasion to review the proceedings at the trial and the verdict of the jury in this case.

The appellant was given leave under section 25 of the Criminal Appeal (Northern Ireland) Act 1980 to adduce the evidence of several witnesses by way of additional evidence. The COA also gave leave to the Crown to adduce the evidence of two witnesses. By consent the statements of all these witnesses were accepted in evidence and oral evidence was not given on the appeal. The case made on behalf of the appellant was that in light of the additional evidence, together with and also on other grounds, his confession should not have been admitted, with the result that the jury’s verdict of murder was unsafe.

The COA also gave the appellant leave to adduce the new evidence of a number of witnesses. By consent the report or reports of each witness were admitted without formal proof, without oral evidence. No factual issue was raised about the correctness of the reports and we accepted their contents as undisputed. These consisted of multiple expert reports. Reports so admitted on behalf of the appellant were as follows:

The COA also received in evidence a number of statements taken by the police during the investigation of the crime which had not been disclosed to the defence, in order to determine whether the non-disclosure of any of these had a material effect on the fairness of the trial.

The Test of an Unsafe finding

The test to be applied under section 12(2) of the Criminal Appeal (Northern Ireland) Act 1980, as amended by the Criminal Appeal Act 1995, is whether the Court thinks that “the finding is unsafe”, the same criterion as that specified by section 2(1) in the case of a conviction. The degree of uncertainty which had persisted for a period after the 1995 Act came into force about the interpretation of the word “unsafe” had by then been largely dispelled.

The Application of Current Standards

An issue was raised at the outset of the appeal about the standards by which the conduct of the trial, the admission of the confession and the direction to the jury should be judged. Sir Louis Blom-Cooper relied upon the statement of Lord Bingham CJ in R v Bentley [1999] Crim LR 330, which he submitted applied mutatis mutandis to the present case:

“Rarely has the court been required to review the safety of a conviction recorded over 45 years earlier. In undertaking that task we conclude:

(1) We must apply the substantive law of murder as applicable at the time, disregarding the abolition of constructive malice and the introduction of the defence of diminished responsibility by the Homicide Act 1957.

(2) The liability of a party to a joint enterprise must be determined according to the common law as now understood.

(3) The conduct of the trial and the direction of the jury must be judged according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.

(4) We must judge the safety of the conviction according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.

Where, between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time. This could cause difficulty in some cases but not, we conclude, in this. Where, however, this court exercises its power to receive new evidence, it inevitably reviews a case different from that presented to the judge and the jury at the trial.”

Next, an honourable mention for the Scottish judiciary. Carswell LCJ continued:

“We note also that the High Court of Justiciary in Scotland has adopted the Bentley reasoning in a case concerning the sufficiency of a judge’s direction in 1948 on corroboration. In Boncza‑Tomaszewski v HM Advocate 2000 SCCR 657 the Lord Justice General (Lord Rodger of Earlsferry) stated at paragraph 5 of his judgment:

“[5] The transcripts and other documents in the case transport the reader back to a very different era of ration books, coalhouses, domestic service and permanent waves. It may be that, similarly, there are more or less subtle differences in the approach which a trial judge and the appeal court would have adopted in 1948 from the approach which they would adopt to the same matter today. In 1998 the Court of Appeal Criminal Division, presided over by Lord Bingham L.C.J., were called upon to consider the conviction of Derek Bentley who was tried and convicted of murder in 1952 and executed the following year after his appeal to the Court of Criminal Appeal had been dismissed. In 1998 the Criminal Cases Review Commission referred the conviction to the Court of Appeal under Section 9 of the Criminal Appeal Act 1995. In R. v. Bentley [1998] T.L.R. 492, the Court of Appeal held that they required to deal with the matter on the basis of the standards applied by the courts in 1998 rather than by reference to the standards of 1952 or 1953. Similarly, they require to apply their current understanding of the common law. We respectfully adopt their Lordships’ reasoning and deal with the issues in this case on the basis of our current understanding of the common law and on the basis of present-day standards. This approach may involve the risk that we seem to criticise our predecessors by reference to criteria which are different from those which they were applying. But that risk is inherent in Section 194B which is specifically designed to allow this court to reconsider the soundness of a conviction even though it was subject to appeal. The operation of that section would be both artificial and ineffective if the court were forced to consider the issues by reference to the practice and legal approach of a bygone age. The purpose of the section must be to permit the court to re-examine cases to see whether, by the common law and standards of the time when the reference is considered, there has been a miscarriage of justice, even if, due to their understanding of the common law or by the standards applied at the time of the original proceedings and appeal, the appeal court would then have reached a different conclusion.”

THE UNSAFE VERDICT DETERMINATION

FIFTH AND FINALLY, the NICOA allowed Gordon’s appeal, ruling his conviction unsafe, in essence on the ground that his confession statement was involuntary. This unfolded in the following way.

Before the NICOA, the Gordon’s counsel had sought to undermine the prosecution case in several ways, by attacking the veracity and reliability of the evidence, submitting that essential planks of the Crown case should have been excluded, and by contending that there were material irregularities sufficient to impeach the fairness of the trial. It was submitted on behalf of the appellant that this process removed so much of the evidence at the heart of the case that what had appeared to be an irrefragable Crown case became too insubstantial to sustain.

As the ensuing judgment noted, it was apparent at the hearing of the appeal that the admissibility of the confession was the factor of most importance in considering the safety of the verdict. The confession was at the heart of the case, and if it was wrongly admitted the rest of the prosecution evidence was insufficient, as Crown counsel accepted, to sustain the jury’s finding. Several other issues and arguments were canvassed, but they were of lesser consequence, and when Crown counsel informed the court that he did not propose to present arguments in support of the admission of the confession, the result of the appeal was inevitable, with some the other matters fading away, while a couple prevailed.

The Admissibility of Gordon’s Confession

The admissibility of the confession was challenged at the hearing on three main grounds:

(i) The procedural safeguards to which a suspect would now be entitled were not afforded to him.

(ii) The confession was not taken by dictation, as Messrs Capstick and Kennedy deposed in evidence, but by question and answer.

It was not voluntary, because of the pressure put upon the appellant and the fear which operated upon his mind.

The Procedural Safeguards Issues

The NICOA decided the procedural safeguards issues as follows. Gordon had not been offered the opportunity of having legal advice at any stage during the interviewing which took place between 13 and 15 January 1953, nor was a solicitor present at any interview. He was offered the opportunity to have an RAF officer present but declined. He was not told, however, that PO Popple had specifically requested that this should be done. These are safeguards which would now be required, though they were not mandatory at the time. Per Carswell LCJ:

“We would not necessarily regard the lack of them as affecting the safety of the conviction in all cases, but in the present case they were of particular importance. We think it unlikely that a solicitor if present would have allowed the interview which Mr Capstick held on the morning of 15 January 1953 to take the course which it did, and the whole course of the interviewing might have been profoundly altered.”

The mode of taking the confession

On this issue, the NICOA reasoned and ruled as follows. Both Detective Superintendent Capstick and County Inspector Kennedy deposed in positive terms, that the confession had been taken by dictation from the appellant, and not by question and answer. Professor Coulthard in his report casts a substantial degree of doubt upon the correctness of the officers’ averments, as do Professor Gudjonsson in his report of 26 February 2000 and Dr French in his report of 23 October 2000. If those averments had been shown to be wrong, it would have had a substantial adverse effect on the credit of both witnesses, as well as establishing a significant breach of the Judges’ Rules. There can be little doubt that if counsel had had this additional evidence before them, they would have vigorously pursued the issue, which might well have had a considerable effect on the willingness of the judge to admit the confession as a voluntary statement. It would also have had a considerable bearing on the issue, to which the evidence of Professor Gudjonsson and Dr Hanley is material, whether the confession truly represents the appellant’s own recollection or is what the former describes as a “coerced internalised” type of confession.

Oppression

Turning to this discrete issue, the NICOA reasoned and ruled as follows. Both Mr McVeigh QC in presenting submissions on behalf of the appellant and the Lord Chief Justice in giving his ruling on the admissibility of the confession adverted to the relevance of pressure upon him in determining its voluntariness.

Per Carswell LCJ, continuing:

“It seems to us clear that Detective Superintendent Capstick set out to achieve just this type of sapping of the appellant’s will when he conducted the interview on the morning of 15 January 1953, and we think it likely that he succeeded in his object. The phrase “broken down” used by counsel in cross-examination and accepted by Mr Capstick in our view represents the state which he sought to bring about. If the appellant had not been questioned at length about his sexual proclivities on the morning of 15 January, he would not have been so ready to make the confession after lunch that day. We think that the effect on his will to stay silent is likely to have substantial and that the fear of having his sexual activities revealed to his family and the world is likely to have affected his mind. We therefore could not regard the confession as having been proved to be voluntary in the eyes of the law. It seems to us doubtful whether it could have properly been so regarded in 1953, for the same common law was applicable. But now that the law has been more clearly developed, we have no hesitation in saying that the admission of the confession cannot be sustained on the application of modern standards.”

The additional medical evidence Issue

This conclusion, the NICOA reasoned, was reinforced by the evidence contained in the reports of Professor Gudjonsson, Professor Kopelman and Dr Hanley.

The NICOA reasoned further thus:

“If the Lord Chief Justice had had this additional evidence before him at the trial we have very little doubt that he would have felt impelled to reject the confession as inadmissible. We consider that we must hold now that it should be ruled out …

The Safety of the Conviction

Per Carswell LCJ:

“On the evidence presented to the jury at trial, the prosecution case that the appellant murdered Patricia Curran was one of formidable strength. It centred round a detailed confession, which he did not retract or attempt to explain away, the content of which was confirmed by the matters which the appellant had told Dr Lewis and which had been retailed by the latter to the jury. It was supported by the evidence of witnesses who claimed to have identified the appellant near the scene of the crime before and after the time relied upon by the prosecution as being the time of the murder, by evidence that the appellant had attempted to set up an alibi by asking RAF colleagues to give false evidence and by the forensic evidence about the finding of bloodstains on his clothing. Given this evidence, the jury had more than ample material on which to come to the conclusion that he had committed the murder. Once the confession was admitted in evidence by the trial judge, the defence were in effect compelled to fall back upon the defence of insanity as the only means of escaping a verdict of guilty.”

The NICOA judgment continues:

“It then has to be considered whether the finding of guilt is safe once one removes the confession, which was at the heart of the Crown case. Doubts have been cast by Professor Kopelman on the reliability of the matters stated by the appellant to Dr Lewis, because, as he put it, erroneous memories are likely to arise and the subject is vulnerable to suggestion. In any event, if the confession had been ruled out, it is most unlikely that the defence of insanity would have been advanced or Dr Lewis called to give evidence – always supposing the Crown case survived a submission that there was no case to answer. The remainder of the evidence against the appellant consists of a certain amount of circumstantial evidence and some suspicious behaviour on his part. We do not consider that if that evidence stood alone the conviction would be safe, and again Mr Weatherup did not seek to argue to the contrary.

We therefore conclude that the jury’s verdict cannot stand. There can be no question of ordering a retrial after this length of time and we therefore allow the appeal and quash the finding of guilt.”

Subsidiary Issues

MacDermott LCJ began his summing up to the jury at 6.20pm on the final day of the trial. They retired to consider their verdict at 8.45pm and returned to court to give it at 10.45pm. It would now be regarded as undesirable to keep such sitting hours: on this issue see our judgment in R v McMoran [1999] NI 50. There were no specific factors which tended to show, as, for example, in Re Bradley [1995] NI 192, that there was a risk that the jury was not put in a position to give a sufficiently considered and reasoned finding. It was nevertheless a very late sitting by modern standards. The approach of the COA was that it must scrutinise a verdict reached at that hour with some care.

Moreover, the jury were informed in a remark made by the judge during the summing-up that they could not have any food or drink once they retired to consider their verdict – although the judge did in fact have a discretion to order otherwise – and it was suggested that this would give them a feeling of being under pressure. This, the COA considered, was another factor to put into the scale when considering the case as a whole in order to determine whether the verdict was safe.

The COA then considered, and rejected, two discrete grounds of appeal advanced:

“We do not consider that the lack of direction on identification or the possible misdirection on the confession statement were sufficiently substantial matters on their own to make the verdict unsafe.”

The COA then addressed the discrete issue of non – disclosure of certain witness statements. This ground of appeal was considered to be of some merit:

“It is incontestable that these matters would be disclosed under modern rules and possibly also under those prevailing in 1953. The effect on the safety of the conviction is more debatable. The rest of the evidence points so strongly to the murder having taken place at or about 5.45 pm that it is difficult to suppose that it would have profited the defence to pursue the issue. They were, however, entitled to have the opportunity, and it was an irregularity that the evidence was withheld.”

The next non–disclosure issue concerned the following:

“If the contents of Marcella Devlin’s statement are true, that could have furnished a possible line of defence, in the form of another suspect, something otherwise lacking. It is very difficult to know at this distance whether this evidence is reliable, but the investigating officer took it seriously enough to have the girl interviewed by her headmistress. We consider that the statement should have been made available to the defence. Even under the practice enshrined in R v Bryant and Dickson (1946) 31 Cr App R 146, which was current in 1953, we think that the girl’s name and address should have been furnished to the appellant’s advisers, to let them make what they could of it and the failure to do so was another irregularity.”

The Admissibility of Gordon’s Confession

The admissibility of the confession was challenged on three main grounds:

(i) The procedural safeguards to which a suspect would now be entitled were not afforded to him.

(ii) The confession was not taken by dictation, as Messrs Capstick and Kennedy deposed in evidence, but by question and answer.

It was not voluntary, because of the pressure put upon the appellant and the fear which operated upon his mind.

The Procedural Safeguards

The NICOA decided the procedural safeguards issues as follows. Gordon had not been offered the opportunity of having legal advice at any stage during the interviewing which took place between 13 and 15 January 1953, nor was a solicitor present at any interview. He was offered the opportunity to have an RAF officer present but declined. He was not told, however, that PO Popple had specifically requested that this should be done. These are safeguards which would now be required, though they were not mandatory at the time. We would not necessarily regard the lack of them as affecting the safety of the conviction in all cases, but in the present case they were of particular importance. We think it unlikely that a solicitor if present would have allowed the interview which Mr Capstick held on the morning of 15 January 1953 to take the course which it did, and the whole course of the interviewing might have been profoundly altered.

The mode of taking the confession

On this issue, the NICOA reasoned and ruled as follows. Both Detective Superintendent Capstick and County Inspector Kennedy deposed in positive terms, that the confession had been taken by dictation from the appellant, and not by question and answer. Professor Coulthard in his report casts a substantial degree of doubt upon the correctness of the officers’ averments, as do Professor Gudjonsson in his report of 26 February 2000 and Dr French in his report of 23 October 2000. If those averments had been shown to be wrong, it would have had a substantial adverse effect on the credit of both witnesses, as well as establishing a significant breach of the Judges’ Rules.

The COA considered that there could be little doubt that if counsel had had this additional evidence before them, they would have vigorously pursued the issue, which might well have had a considerable effect on the willingness of the judge to admit the confession as a voluntary statement. It would also have had a considerable bearing on the issue, to which the evidence of Professor Gudjonsson and Dr Hanley is material, whether the confession truly represents the appellant’s own recollection or is what the former describes as a “coerced internalised” type of confession.

Oppression

Turning to this discrete issue, the COA reasoned and ruled as follows. Both Mr McVeigh QC (representing Gordon) in presenting submissions on behalf of the appellant and the trial judge in giving his ruling on the admissibility of the confession adverted to the relevance of pressure upon him in determining its voluntariness.

Per Carswell LCJ, continuing:

The additional medical evidence Issue

This conclusion, the NICOA reasoned, was reinforced by the evidence contained in the reports of Professor Gudjonsson, Professor Kopelman and Dr Hanley.

The NICOA reasoned further thus:

The Safety of the Conviction

The NICOA reasoned thus:

MISCARRIAGES OF JUSTICE: THE LEGAL TEST

See Thompson. R. v [2024] NICA 30 (24 April 2024):

“[32] The requirements which govern a reference are covered under section 13 of the 1995 Act. A reference in respect of a conviction can only be made under section 10 if:

(a) the Commission consider there is a real possibility that it would not be upheld were the reference to be made;

(b) the Commission so consider because of an argument or evidence not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it;

[33] However, nothing stated at (b) or (c) above prevents the CCRC making a reference if it appears that there are exceptional circumstances which justify making it.

[34] Further provisions in respect of references are provided at section 14 of the 1995 Act to include:

(a) A conviction may be referred under section 10 either after an application has been made by or on behalf of the person to whom it relates or without an application having been so made (section 14(1)).

(b) In considering whether to make a reference under section 10 the Commission shall have regard to:

Any application or representations made to the Commission by or on behalf of the person to whom it relates;

Any other representations made to the Commission in relation to it; and

Any other matters which appear to the Commission to be relevant (section 14(2)).

Give to the Court of Appeal a statement of reasons for making the reference; and

send a copy of the statement to every person who appears to the Commission to be likely to be a party to any proceedings on the appeal arising from the reference (section 14(4)).

(d) Subject to subsection (4B), where a reference under section 10 is treated as an appeal against any conviction the appeal may not be on any ground which is not related to any reason given by the Commission for making the reference (section 14(4A)).

(e) The Court of Appeal may give leave for an appeal on a ground not related to any reason given by the Commission for making the reference (section 14(4B)).”

POSTSCRIPT

77. Seventy years later, who the murderer was, how, when and where the murder took place and even the circumstances under which the body was actually found are all questions which have stimulated debate, and much speculation, among journalists, lawyers, doctors and the general public.

78. Among the journalistic commentaries one finds the following:

“There have long been rumours of a quarrel with her mother on the evening of Patricia’s death. She had arrived home at 5.30pm. At around 7pm Judge Curran was urgently summoned from the Ulster Reform Club in Belfast city centre where he had been playing poker. Desmond arrived a short time later. Had they but known it, the RUC didn’t have very far to look for the real culprit. The outcome was one person died, two other lives were blighted, and Gordon may be said to have been lucky inasmuch as he was not hanged.”

79. Fast forward to 4 September 2015, when a local newspaper reported:

“A JESUIT priest from a devoutly Protestant family at the heart of the Northern Ireland establishment has died in South Africa - taking to his grave the last chance of shedding further light on one the north's most notorious murders.

80. The Jesuit Priest concerned was Fr Desmond Curran, older brother of Patricia Curran, the deceased. In a remarkable twist, Desmond, recently called to the Bar of NI, converted to Catholicism, studied for the Priesthood, was ordained a Jesuit Priest and spent the remaining (circa 50) years of his life dedicated to the poor and wretched inhabitants of the shanty towns of Cape Town, South Africa. The Currans were a staunchly Unionist family. Possibly equally remarkably, in all of this Desmond received the full support of his father, who by then had become The Rt Hon Sir Launcelot Curran PC of the NICOA.

81. AND an engaging TV documentary followed, in 2009. It included an unforgettable ‘confrontation’ between Gordon and Fr Desmond, both near octogenarians, on the steps of Belfast Castle. Gordon maintained his protestation of innocence. Fr Desmond, responding, stated (to this author’s recollection) “…Iain, you know you did it ….” There was no mention of the facts that [1] the police did not have access to the Gordon family home until five days after the murder and [2] Patricia’s bedroom appeared to have been entirely freshly decorated. Both men – and, indeed, all concerned – have gone to their graves. Did anyone bring some murky secrets with them?

A FINAL COMMENT

82. The CCRC 1995 legislation has been invoked in numerous cases in NI. In this author’s personal experience, the success rate has been high: most CCRC referrals have succeeded. This demonstrates the vital importance of this innovative statutory measure. Iain Hay Gordon’s case was unique in that it was not a “troubles” related conviction belonging to the dark decades of the 1970’s and 1980’s.

83. The quashing of Iain Hay Gordon’s murder conviction is, in the final analysis, attributable to the world getting wiser as it grows older, in the form of progressive legislation and sheer human determination, coupled with the cornerstone of the rule of law, namely a fair, impartial and independent judiciary.

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