The recent four-part Netflix docuseries “When They See Us” depicts the harrowing case of Trisha Meili, a white female jogger who, in 1989, was viciously assaulted and raped in Central Park, New York. She was left in a coma for 12 days and, when she recovered, had no memory of the incident. Equally disturbing was how the five juvenile suspects – all black or Hispanic – were treated by the investigating officers, the US justice system and certain elements of society determined to see them convicted, whatever the cost.
These juveniles were Kevin Richardson, Antron McCray, Raymond Santana, Korey Wise and Yusef Salaam. They became known as the “Central Park 5”. They were all aged 16 or under in 1989 when they were investigated and indicted.
There was no evidence to support the prosecution case that any of the Central Park 5 had raped Ms Meili, bar their own confessions. In fact, all of the remaining evidence pointed to them not being involved. Ms Meili could not identify her attacker(s), the DNA of the Central Park 5 did not match the DNA samples collected from the scene of the crime and there was no physical evidence linking them to the rape. Therefore, what the suspects said in interview was the decisive evidence in the prosecution case at trial.
Following Ms Meili’s rape, the police came under intense pressure to solve the case and bring those responsible to justice quickly. Rather than looking at the evidence impartially to establish who was (or wasn’t) responsible, the police sought to obtain confessions from juveniles who were already in police custody that night. Confessions were forthcoming from four of the Central Park 5, none voluntarily, with one of the boys only confessing after he was beaten by the police.
The Central Park 5 were vilified in the media and were not afforded the protection of anonymity. Their identities and photographs were published widely, starting with the ‘perp walk’ out of the police station following their charge. Donald Trump took out a now notorious one-page article in four daily New York newspapers, less than two weeks after the attack, calling for a reinstatement of the death penalty. His article said: “I want to hate these murderers and I always will. I am not looking to psychoanalyse or understand them, I am looking to punish them.”
Each of the juveniles soon resiled from their confessions, insisting that they had been coerced by police officers. Coercion is putting it lightly. Each was subjected to hours of interrogation which were not videoed or accounted for prior to an adult being present. The five were also misled by investigators as to the extent of the DNA evidence against them (there was none) as well as what the other suspects had said about their involvement. Four of the five did not have a parent or guardian present when interrogated (although in some cases parents were later brought in when the video tapes were turned on), despite being juveniles. It was also reported that they were deprived of food, water and sleep. None had lawyers present to safeguard their rights.
Despite lawyers for the boys later making applications for the confessions not to be admitted into evidence, the trial judge ruled them to be admissible. All were subsequently convicted on the basis of their confessions and sentenced to terms of imprisonment between six and 13 years.
It was only 12 years later that the truth prevailed when Matias Reyes, serving a life sentence for a series of rapes in New York committed around the same time as the attack on Ms Meili, confessed to being responsible for her rape. This led to the exoneration of the five (now) adults, one of whom was still serving his sentence when his conviction was quashed.
Would the same outcome have occurred if the case had been investigated in England and Wales?
Conduct of the investigators in interview
In England and Wales, the Police and Criminal Evidence Act 1984 (“PACE”) states that “juveniles must not be interviewed regarding their involvement or suspected involvement in a criminal offence or offences, or asked to provide or sign a written statement under caution or record of interview in the absence of an appropriate adult” (Code C – 11.15). At the time of the Central Park 5 case in 1989, PACE had been in force for five years, and would have afforded each of the five (all being 16 years or younger) an appropriate adult in interview. (Indeed, the age of a “juvenile” for these purposes was subsequently increased from 16 to 17 following R (on the application of HC) v the Secretary of State of the Home Department  EWHC 982 (Admin)).
The role of the appropriate adult in an interview under caution is not confined to that of an observer; he or she is there to ensure the interview is conducted properly and fairly and to facilitate communication with the person being interviewed. Had each of the Central Park 5 been afforded an adult when interrogated, it is unlikely the detectives would have conducted themselves in the manner they did, and equally unlikely that confessions would have been coerced from the boys.
The need for an adult presence stems from the guidance in PACE Code C that, although juveniles or vulnerable persons are often capable of providing reliable evidence, they may, without knowing or wishing to do so, be particularly prone in certain circumstances to providing information that may be unreliable, misleading or self-incriminating. Because of this risk of unreliable evidence, PACE Code C notes that it is important, where possible, to obtain corroboration of any facts admitted by juveniles or vulnerable persons. No such corroboration was undertaken in the case of the Central Park 5. On the contrary, their confessions all contained conflicting and inconsistent accounts as to the nature and extent of the victim’s injuries, as well as other erroneous facts as to the timing and location of the attack. Korey Wise, for example, told police in his confession that the victim was stabbed with a knife. This should have set alarm bells ringing given there were no stab wounds on the victim’s body. Indeed, the police were aware at the time of interviewing Korey that the victim had instead been hit with a rock; there was no evidence of a knife being used in the attack. In the rush to find someone responsible, no attention was seemingly paid to the need for the confession to be corroborated by independent evidence.
Admissibility of evidence
If the English police had breached Code C – 11.15 by denying the juvenile suspects appropriate adults, and then coerced confessions from them, would the confessions have been ruled to be admissible, as they were in the US trial? The basic rule in English law is that, if any provision of PACE or its codes is breached, this may render the evidence obtained inadmissible at trial as long as the defence can persuade the court that the breach leads to reasons to exclude the evidence under PACE s76 or s78.
Section 76(2)(a) and (b) PACE create two mechanisms by which an interview can be held to be inadmissible. S76(2)(a) excludes evidence obtained by way of oppression. Oppressive conduct has been defined as “questioning which by its nature, duration or other circumstances (including the fact of custody) excites hope (such as the hope of release) or fears…”. With this definition in mind, a s76(2)(a) PACE argument would have likely succeeded in Kevin Richardson’s case: he was explicitly told he could go home once he had confessed. A similar argument would have likely succeeded in both Korey Wise and Yousef Salaam’s cases. Korey was beaten by police during interrogation, whilst Yousef heard the beating from the adjacent room and was told he would be next unless he confessed. Further features of the manner in which the Central Park 5 were interrogated that would likely have rendered their confessions inadmissible in proceedings in England and Wales under s76(2)(a) PACE include: a) the fact that the initial interrogations were not recorded; b) the deprivation of food, water and sleep during periods of interrogation; and c) the interrogation of a suspect of low intelligence on numerous occasions during a lengthy period of detention.
S76(2)(b) excludes confessions which are unreliable. To take just one of the Central 5, Korey’s confession would almost certainly have been excluded under s76(2)(b), because being beaten by the interrogator who extracts the confession is prima facie evidence of unreliability. Confessions may also be regarded as unreliable where there is no appropriate adult in interview – the denial of a right to an appropriate adult might also lead to a failure of the suspect to recognise the need for legal advice..
As a result of s76(2) PACE, one would like to think that, had the Central 5 been tried in England and Wales, their confessions would not have been admitted in evidence against them, and this being the only evidence pointing towards their guilt, they would have been acquitted.
Anonymity of child defendants
The anonymity of juvenile defendants is granted automatically where proceedings are conducted in the youth court and on application to the Crown Court. A section 45 Youth Justice Criminal Evidence Act 1999 (“YCEA”) order states that no matter relating to any person in the proceedings shall, while the person is under the age of 18, be included in any publication if it is likely to lead members of the public to identify them as a person concerned in the proceedings. The same protection was embedded in English law in 1989 through section 39 Children and Young Persons Act 1933.
The Central Park 5 were not afforded this protection: their identities and photographs were spread widely in the media, commencing with their pictures on the ‘perp walk’. They were subjected to public vilification in newspapers. The media coverage was not only aggressive and voluminous but also racist and dehumanising. Although a reporting restriction is common prior to conviction (for both adults and children), the Crown Court has the ability to lift reporting restrictions at any stage. Whether the judge does so is a balancing exercise between the interests of the welfare of the defendant and the principle of open justice. Where the defendant is a juvenile, there are particular considerations that must be weighed in this balance. These include the risk of retribution, the rehabilitation of the child and the impact on the child’s mental health and wellbeing. If any of these considerations had been applied in the Central Park 5 case, a reporting restriction would almost certainly have been imposed, at least until their convictions.
When a child turns 18 there is no longer a right to anonymity in England and Wales: any previously imposed reporting restriction will automatically expire. The only way in which a defendant can protect their identity after turning 18 is to obtain a civil injunction granting the defendant anonymity for life. There are only a few of these orders in place currently in the UK; a rare example was granted recently by Dame Victoria Sharp in the High Court following a child defendant’s conviction in 2015 for inciting terrorism overseas.
Had the Central Park 5 been tried in England and Wales in 1989, their identities would have been protected, at least until the point at which they were found guilty or not guilty, or until they turned 18. As a result, their trial would not have been tainted by the type of public vilification which occurred in the US.
The case of the Central Park 5 is a painful lesson in the dangers of a criminal justice system corrupted by the pressure to secure a conviction at any cost. These dangers are particularly acute in cases where the suspects are vulnerable. Juvenile suspects, who by virtue of their age are inherently vulnerable, are rightly afforded a high level of protection by PACE. These protections were available in England and Wales in 1989 and have been strengthened in subsequent years.
Indeed, the importance of the safeguards introduced by PACE was underlined several months ago in the Court of Appeal decision in R v Jones, where the appellant had been interviewed by police when 17 years of age in 1976, without a lawyer or appropriate adult being present. The Court in allowing his appeal and quashing his 1976 conviction for manslaughter stated: “The pressures of being interviewed by the police are clearly real and the protections introduced by the Police and Criminal Evidence Act 1984 have done much to address, to such extent as it is possible, the pressures on those arrested and being interviewed”. Tragically, equivalent protections under US law were not afforded in practice to the Central Park 5.
 R v Mushtaq  2 Cr.App.R.32
 R. v. Delaney, 88 Cr.App.R. 338, CA
 R. v Paris (Anthony), 1993 WL 965739
 Evidence obtained by torture is inadmissible – A v Secretary of State for the Home Department (No.2)  2 AC 221
 R v Fogah  Crim. L.R. 141 – Where a juvenile was not interviewed in the presence of an appropriate adult it was a breach at the time (1988) of Code of Practice 13.1 and the confession obtained should have been excluded t trial.
 R v Aspinall  2 Cr App R 115
  EWCA Crim 1059
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