The headnote in R v McKenzie  1 WLR 453 reads:
“Where the prosecution case depends wholly on confessions, the defendant suffers from a significant degree of mental handicap and the confessions are unconvincing to a point where a jury properly directed could not properly convict on them, the judge should take the initiative at any stage of the case in the interests of justice and withdraw the case from the jury.”
One of the cases cited in argument, but not referred to in the judgment, is R v Kiszko (unreported) 18 February 1992, CA.
Stefan Kiszko was convicted of murder twenty five years ago – on 21 July 1976. The victim was11 year-old Lesley Molseed. She had been stabbed to death on the Yorkshire moors. The killer had ejaculated on her underclothes.
Kiszko spent the next 16 years in prison. He was released in February 1992 after the decision of the Court of Appeal. He had collapsed mentally and physically.
Stefan Kiszko was innocent. Lesley Molseed’s real killer has never been prosecuted.
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Stefan Kiszko was the son of a German mother and a Ukrainian father who had fled to England after the second world war. They were hard-working ordinary folk who lived in Rochdale in the north country and were proud of their son when he got a job in the tax-collector’s office: he was the first in the family to wear a suit and tie to work.
Stefan was a large child-man: although apparently of average intelligence, he was grossly immature because of hypogonadism – his testes were completely undeveloped. This condition was not diagnosed until he was 23. As a student, he had been the butt of schoolyard jokes; when he began work as a clerk, he became the butt of office jokes. He had no friends, and no social life beyond his parents and his aunt Alfreda. Then his father died, and he had only his mother and aunt – but he wanted nothing more. He was a lumbering, good-natured child in a man’s body.
Lesley Molseed was a small, frail 11 year-old. She lived in Rochdale with her mother and step-father. On 5 October 1975, she agreed to go down to the shop to get some bread. Her body was found 3 days later, on the moors nearby. She had been stabbed 12 times. Her clothing was undisturbed, but the killer had ejaculated on her underwear.
An enormous police investigation began when the body was found. The police took statements from over 6000 people, including girls in the Rochdale area who had seen a man indecently exposing himself during the weeks immediately before Lesley Molseed was killed; and people who had seen vehicles in the parking area near the place on the moors where the body was found.
Two girls identified Kiszko as the man who had exposed himself to them. Police quickly formed the view that Kiszko fitted the profile of the person likely to have killed Lesley Molseed. They pursued evidence which might incriminate him, and ignored leads which would have taken their enquiries in other directions.
The police questioned Kiszko closely. They were convinced he was the murderer, and they seized on inconsistencies between his various accounts of the relevant days as further demonstration of his guilt. They paid no attention to his gross social backwardness; they did not tell him of his right to have a solicitor present; when he asked if he could have his mother present when he was questioned, they refused; they did not caution him until well after they had decided he was the prime suspect.
Kiszko made a confession, which he retracted shortly afterwards. He explained that he had confessed because the police had assured him he could go home to his mother if he told them what had happened.
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The trial began on 7 July 1976. Kiszko was defended by David Waddington QC and Philip Clegg. The prosecutor was Peter Taylor QC (later Taylor LCJ) with Matthew Caswell.
The defence made 3 significant mistakes:
First, they did not seek an adjournment when the Crown delivered thousands of pages of additional unused material on the first morning of the trial. Among the additional material was a statement by a taxi driver who admitted being the person who had (inadvertently) exposed himself in front of the two girls: it was the incident which had initially attracted police attention to Kiszko; it was an incident to which he had confessed in his statement to police. It gave the clearest grounds for suspecting the reliability of Kiszko’s confession.
Second, instead of seeking to exclude the confession on a voir dire, they sought to impeach its voluntariness and veracity in the course of the trial itself. This meant not only that the jury saw the confession, but also that they heard all of Kiszko’s pitiable frailties and shortcomings as a human being.
Third, and most difficult to understand, they ran inconsistent defences. Kiszko had recently been put on a course of hormone treatment to deal with the consequences of his immature testes. The scientific evidence was that this could cause uncharacteristic changes of mood, although even here the defence put forward an exaggerated version of the likely effects. So the defence involved a denial that Kiszko committed the murder, coupled with a defence of diminished responsibility: “if he did it, it was because of the hormone treatment which turned him into a sex monster”. It is hard to imagine how any jury could exclude the effect of the second defence from their consideration of the first. In any event, Kiszko’s endocrinologist would have said (if called) that the effect of the hormone treatment was only to exaggerate existing personality traits, and that the effect of the hormones on Kiszko would certainly not have caused him to commit a crime so grotesquely at odds with his normal personality.
Kiszko appears not to have been consulted about the second line of defence. From first to last (apart from the retracted confession) Kiszko insisted that he had never met Lesley Molseed, and did not kill her.
He was convicted and sentenced to life imprisonment.
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For a person convicted of sexually molesting and killing a child, life in gaol is hard. Kiszko was frequently beaten by other prisoners, and eventually retreated into a world of private delusion, in which he was the victim of an immense plot to incarcerate an innocent tax-office employee in order to test the effects of incarceration. He ultimately came to believe that even his mother was party to this elaborate conspiracy.
Meanwhile Kiszko’s mother was the only person who clung tenaciously to a belief in his innocence. She pleaded his case to anyone who would listen. She was steadfast in her certainty that Stefan was innocent. As her entreaties became more desperate and forlorn, so her audience became less receptive. But eventually, in 1987, Campbell Malone agreed to take a look at the case. He consulted Philip Clegg (who had been Waddington’s junior at the trial). Clegg expressed his own doubts about the confession and the conviction. After lengthy investigations, they prepared a petition to the Home Secretary. The draft was finally ready on 26 October 1989. On the same day, by the most remarkable coincidence, a new Home Secretary was announced: David Waddington QC MP. Despite (or perhaps because of) Waddington’s exquisitely delicate position in the matter, more than a year passed before a police investigation into the conduct of the original trial was begun.
Detective Superintendent Trevor Wilkinson was assigned to the job. After a great deal of painstaking work, Wilkinson’s team of investigators discovered 4 vital things:
First, that the additional unused material disclosed to the defence on the first day of the trial included crucial evidence, but the late disclosure had made it impossible for the defence team to pursue the ramifications of that evidence; the evidence, if pursued, would have cast doubt on the reliability of the confession.
Second, the matter of the two girls who identified Kiszko as the person who had exposed himself to them. Their statements had been read to the Court; they were not cross-examined. During the investigation in 1990, the girls (by then they were mature women) admitted that they had made up the story: they had simply seen the taxi driver urinating behind a bush.
Third, that the pathologist who examined Lesley Molseed’s clothing had found sperm in the semen stains on the underwear. This fact had not been disclosed to the defence or the Court.
Fourth,that the police had taken a sample of Kiszko’s semen at the time of the investigation: it contained no sperm at all. This fact had not been disclosed to the defence or the Court.
It therefore became apparent that the evidence led against Kiszko had been flawed and partial, and that vital evidence had been withheld from the Court and from the defence.
These investigations culminated in an application which was heard by the Court of Appeal on 17 & 18 February 1992. At the conclusion of the argument, the appeal was allowed. Lane LCJ said
“It has been shown that this man cannot produce sperm. This man cannot have been the person responsible for ejaculating over the girl’s knickers and skirt, and consequently cannot have been the murderer”.
On the same day, Peter Taylor QC was appointed Lord Chief Justice.
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Kiszko was released immediately. He needed 9 months rehabilitation before he could go home to his mother. He received 500,000 pounds in compensation for his 16 years in prison. However his physical and mental health had been destroyed. He died eighteen months later, aged 41. The date of his death was 23 December 1992: exactly 18 years after his arrest. His mother died 6 months later.
The Court of Appeal decision by which Kiszko was released is not reported. So far as the legal system is concerned, the life it destroyed is nothing but a footnote in R v McKenzie.