The Mammoth Book of Unsolved Crimes

EVIDENCE BY ENTRAPMENT by Brian Masters

In Britain, the most notoriously unsolved murder of the 1990s was that of Rachel Nickell on Wimbledon Common. Her killing, witnessed by her little son on a summer’smorning, provoked a national clamour. Detectives eventually arrested Colin Stagg, an out-of-work loner who lived nearby. But he was freed by a judge at the Old Bailey when it was revealed that police had tried to snare their suspect into confessing by the use of a so-called “honeytrap,” a woman police officer who, operating undercover and using the name “Lizzie James”, had befriended Colin Stagg and sought to establish a relationship with him. The judge, Mr Justice Ognall, ruled that evidence from such a witness was inadmissible. The prosecution dropped the case, and Colin Stagg was cleared of murder. The case also raised questions about the use of psychological profiling, and it was this contentious aspect of the investigation that concerned the British author Brian Masters (b. 1939). He has written about many controversial murder cases in Europe and America since his classic study of the mass murderer Dennis Nilsen appeared in 1985.

Rachel Nickell was an enchanting, pretty, ebullient girl, described by her father as “a bright star” whose “happiness was so real you could touch it”. On 13 July 1992, she went bouncing out for a walk on Wimbledon Common with her two-year-old son Alex, arriving there at ten a.m. Thirty-five minutes later she was dead, viciously stabbed forty-nine times in a random, motiveless murder which bore all the signs of psychopathic disorder. It had taken three minutes to dispatch Rachel and leave her little boy, bathed in her blood, clinging to her body and pleading for her to get up. No wonder the nation was overwhelmed with pity. And no wonder Mrs Nickell shed tears in court last week when the case against the man accused of killing her daughter was not even allowed to go to trial. I do not know the Nickell family, but having spent many weeks with Bruce and Pat Cottrill, whose daughter Fiona Jones was slaughtered by a stranger in France, I think I know something of their anguish. Being cheated of an answer, a result proclaimed in court, makes it seem that Rachel’s death did not matter.

But it was not the fault of the court that there was no evidence to connect Colin Stagg to the crime. It was the fault of naïve and increasingly desperate police methods born of understandable frustration. The murderer left no tangible clues. Police had mounted the biggest murder hunt in London’s history. They interviewed hundreds of people, drew up a list of over 500 suspects, cautioned scores, actually arrested and released thirty-two men. One of these had been Stagg, who had been interrogated for three days from 18 September 1992; he had co-operated fully and given a reliable account of his movements. They searched his flat and found nothing of any relevance. Nevertheless, they did not forget him.

It was not entirely a mistake for police to seek the guidance of an “offender profiler” to describe the sort of man they should be looking for, but it was, perhaps, foolish to attach importance to what can only be intelligent conjecture. Anyway, they had nothing else, so they turned to Paul Britton, a psychologist who works in Leicester and who had helped on other investigations. Offender profiling is not a science; it relies upon the merging of experience with intuition, and was first developed by the National Centre for the Analysis of Violent Crime, a division of the FBI at Quantico, Virginia, as a tool to assist traditional detection. The acknowledged expert there is Robert Ressler, who is frequently called upon to offer an opinion, although the judge at the trial of Jeffrey Dahmer in Milwaukee declined to allow Mr Ressler to testify in court. When American judges have permitted an “offender profile” to be presented in evidence, they have regretted it. Convictions have been secured on seventeen occasions, and all of them have been overturned by a higher court.

The trouble is, “offender profiling” is an infant art. It is experimental and haphazard. Professor David Canter has written about the “shadow” left by the criminal of himself at the scene of crime, which is a striking image, but he has more reliably concentrated on the clues he might find as to methods rather than as to personality. It is when one starts postulating the personality of an unknown killer that the “shadow” becomes really insubstantial, and this is what happened, sadly, to the Wimbledon inquiry.

The FBI’s Behavioural Science Unit, where psychological profiling originated as an aid to the analysis of violent crime, was based precisely upon this idea that behaviour always reflects personality. Therefore, if you can see how the murderer behaved towards his victim, you can work out what kind of man he is. To this end, a team of FBI agents conducted extensive interviews with thirty-six convicted sex murderers between 1979 and 1983 in order to discover what they had in common, and use the results to make a composite picture of the typical offender. They found, for example, that nearly half of them had been sexually abused in childhood and most of the rest at a later stage. Seventy per cent of them had problems functioning as sexual adults and had to use pornography as a stimulus. They enjoy watching somebody look terrified, and had a compulsive itch to dominate and control somebody else. Pornography, the FBI concluded, was never the cause of the murder, but the fuel of a unrealized fantasy which might include murder. When inhibiting factors were weak, the fantasy might explode, so it was another characteristic of these men that they had little capacity for self-restraint and poor self-esteem.

(Incidentally, the film SilenceoftheLambs purported to show an FBI agent interviewing serial killer Hannibal Lecter. Just one of the fraudulent aspects of that film was that agents always operate in twos when in close contact with a dangerous convict).

The value of the psychological profile is debatable. It is obviously useful in eliminating suspects who might be happily married clergymen or clubbable classical lexicographers, but the rather general characteristics which are left can cover an awful lot of people. Ted Bundy, the plausible good-looking young man who killed and disfigured several girls in various of the United States in the 1970s, was not caught by the FBI’s profile but because he fired on a traffic policeman who gave chase when he was driving a stolen car. He had killed for years undetected. Once in custody, however, he was identified with the help of the profile, which for the defenders of this method is sufficient justification. For its critics, there is just too much reliance placed on hunches, which can often be quite unsupported.

Paul Britton said the murderer of Rachel Nickell would have a strong inclination to sexual fantasy, would seek a young submissive adult woman for sexual gratification, would seek to dominate and control her and would be excited by her fear. More specifically, he would look for buggery as well as vaginal intercourse. All this was, frankly, fairly commonplace, in so far as this kind of murderer is always an isolated fantasist, inadequate on a social level and dangerous only when the fantasies are unleashed into the real world. Britton suggested that the use of a knife indicated that the murderer belonged to a very small category of sexual sadists, and he was probably thinking of those described by (his almost namesake) Robert Brittain in Medicine, ScienceandtheLaw in 1970. But again, he went further in proposing that Rachel’s killer would be interested in so-called satanic rituals. It is difficult to see why that should be so, except as a wild idea.

So the police had to find somebody whose sexual fantasies were rather less innocuous than yours or mine-not an easy task given that fantasies are necessarily private. By a lucky chance, they were approached by a girl called Julie Pine who had been in correspondence with a man contacted through a lonely hearts column. This man’s third letter was so disgusting that she thought the police ought to know. His name was Colin Stagg, unemployed, thirty years old and still a virgin. His file was brought out again, and it revealed that his bedroom was painted black and he possessed some books on cult subjects. (So do I, and my room was painted blood-red thirty years ago, but never mind.)

Investigators then instigated the undercover operation designed to elicit a confession from Stagg. A woman police officer, using the fictitious name of Lizzie James, wrote to Stagg on 19 January 1993, posing as a friend of Miss Pine and presenting herself as attractive and much more broadminded than the other woman. She said her favourite record was “Walk on the Wild Side”, a blatant come-on. Britton predicted that Stagg would respond and would gradually ease his way through confidence to confession. It should take at least two weeks, but no more than sixteen. Throughout, Britton would control the content of WPC James’s letters and monitor Stagg’s replies.

The first reply came immediately, with an admission from Stagg that “I do sometimes get painfully lonely”. He said his only friend was his dog Brandy, whom he walked on the common every day. On instruction, “Lizzie” picked up the theme of loneliness and revealed: “I haven’t had a relationship with a man for a very long time, and I sometimes long for company, of the kind only a man can give.” She gave the impression, too, that she would not object to a sexual fantasy as Julie had. Stagg was being enticed from the very beginning by what amounted to an agentprovocateur.

He told her that he had never had a sex life, that women didn’t want to know, and included the fantasy letter she had asked for, telling of sex in the dark. She then put herself forward as a woman of experience, and encouraged him to fantasize further. “There’s more to you than meets the eye,” she wrote, “I’m sure your fantasies know no bounds… you’re a brilliant story-teller… I’m working myself up.” She sent him a picture of herself. “You’ve certainly brightened up my life,” he told her. “Nothing like this has ever happened to me before. It’s like a dream come true. I have never been attractive to women, that’s why I have so many fantasies.” She commiserated with a mixture of sympathy and seduction. “I understand exactly how you feel. Your honesty is so refreshing. I do hope we will always be honest with each other, as being betrayed and let down is so difficult to get over… Don’t worry, you won’t be lonely much longer. Each time you write, I know we get closer and closer. There are secrets about me that I long to share with someone. I’ve got things to tell that you won’t believe.”

Colin Stagg was an obliging, enthusiastic correspondent, but annoyingly slow in fitting the profile Mr Britton had devised. He was supposed to be keen on anal sex, so Lizzie introduced the subject, archly rather than directly. “I hope I’m not sounding unnatural,” she wrote, using a word obviously planted, “but there’s so much more to explore than just straight sex.” He did not seem to realize what she meant. Again, the prediction was that he would want to dominate, so she offered herself to him. “You’ve taken charge, you’re so powerful. I want to feel you all-powerful and overwhelming. I want you to burst.” Throughout the correspondence, she urged him to write ever bolder fantasy letters, and responded immediately to these, withholding her reply if he failed to include a fantasy or came up with a tame one.

There is no doubt that Stagg liked to write exciting sexual fiction, but the content of his letters was being dictated and shaped by Lizzie. As Mr Justice Ognall said last week, the fantasies he expressed during the first two weeks of the correspondence were such as might occur to any heterosexual and inexperienced young man. These were not good enough, so he had to be encouraged in the invention of more outrageous scenes. At one point, she sent him a tape-recording which Mr William Clegg, in his submission to the court for the defence, described as “the most hard-core pornography one could imagine… an extraordinary document for a working police officer to send to a suspect in a murder investigation… without precedent”. The paradox in this sorry tale seems to be that the more kinky prose came from Paul Britton, via the police officer.

When Lizzie begged Stagg to reveal something terrible in his past, because she could never be comfortable with a normal man, the best he could come up with was mutual masturbation with a boy when he was seventeen. (“That must have been a disappointment,” murmured someone in court.) He wondered whether she might be a journalist in disguise, but he was by this time so bewitched by her that he would do anything to keep the relationship going, especially since she held out the prospect of meeting and, eventually, settling down together. The tenor of his replies was often domestic, romantic, hopeful. He spoke of redecorating his flat and of their cooking dinner together. But she wanted more pornography, so he supplied it rather than lose her. At one point he showed apprehension about the effect his stories might have. “Don’t worry,” he wrote. “No harm will come to you. I don’t want to upset you.” Prosecuting counsel John Nutting said this demonstrated that he was anxious not to go too far. More likely, surely, that he did not know how far to go. A psychotic fantasist has no such scruples, because he is indifferent to and ignorant of the effect of his imaginings. Nor, and this is very important, does he share them with anyone else. It could be argued that Stagg effectively excluded himself as a suspect by divulging these fantasies. “I now have some idea of what you want,” he wrote before one exotic tale.

After five months, the undercover operation had got nowhere. Colin Stagg simply was not matching up to expectations, was not delivering according to the theoretic “profile”. WPC James, knowing that he was hard up, offered him money, but he would not accept. She promised they would go on holiday together, at the same time making it clear that he was not all that she had hoped for. If he wanted her, he must come up to her level. She introduced the theme of hurting people, not in fiction but in fact, inviting him to respond. “I do not understand,” he wrote. “Do you mean physically, mentally, or emotionally? I lead a very quiet life.” She then hinted at a dark secret. “Can you imagine what I have done?” she asked, to which he made the obtuse reply, “You haven’t given me any real clues. What do you mean?”

The policewoman finally went to the point, saying that she had participated in a ritual murder and had personally cut the throat of a young woman and her child, after which she had had the best sexual experience of her life. He decided to match this by confessing to a murder in the New Forest with his cousin when he was thirteen years old. As everyone in court subsequently agreed, this was an invention; no such event had occurred. They talked about the killing of Rachel Nickell, and he admitted that thinking about it turned him on. He liked the idea of the knife. It looked as if the investigation was getting closer to its aim. She intimated that it would be “great” if he had done it, and “I wish you had”. He would then be worthy of her, and they could live together for ever. “It wouldn’t matter to me if you had murdered her. I’m not bothered,” she wrote. “If I didn’t like you so much I could lie to you and say I did do it, just to keep you,” he said. Mr Justice Ognall intervened to point out that this would seem to indicate that he would not confess despite the most powerful inducement.

Colin Stagg and “Lizzie” met four times. They continued to discuss Rachel’s murder, which he described inaccurately. He said she had been raped. She had not. He misidentified where she had been found. And on their last encounter, he described the position of her body, with a crucial detail relating to the position of her hands which, though still inaccurate, the police construed as a confession. It had taken seven months. The next time the two met, “Lizzie” was in her true colours, in uniform. The judge commented wrily that this must have been a traumatic experience for them both.

The Crown admitted that the operation had necessarily been deceitful but that “more serious offences do justify more unusual methods of investigation”. While the law permits evidence obtained by clandestine means to be given in evidence in certain circumstances, it stipulates that the information so obtained must be other than that discoverable by question and answer, in order to uphold the centuries-old common law which protects an individual from incriminating himself. In the Stagg/James relationship there was, however, no difference between asking questions and eliciting material designed to build up an incriminating psychological profile. Had the 700 pages of transcripted conversations and correspondence been allowed in evidence, it would have been the first time such evidence was presented in British criminal history. We now know that the judge did not allow it, because the suspect had clearly been manipulated with a view to inculpating himself, and that exculpatory material had been set aside. Mr Justice Ognall, a deeply experienced and splendidly sane Yorkshireman, is no friend to villains, but is even less an ally to subterfuge. The overriding demands of fairness in the justice system must prevail.

What case did the Crown hope to present against Colin Stagg? There was no murder weapon, no motive, no evidence of previous personality disorder apart from one instance of indecent exposure, no forensic evidence to link him to the brutal murder of Rachel Nickell. The prosecution had three planks. First, Stagg had been on Wimbledon Common at the time of the offence (along with 500 other people). Second, that he had described the position of Rachel’s body (not accurately, as it turned out). Third, that his fantasies matched those to be expected according to the predictions of Paul Britton. When this last plank was disallowed, the first two diminished to invisibility, and the Crown had to concede they had no evidence at all. Hence the formal verdict of Not Guilty.

Colin Stagg is perhaps a flawed character. He had some timid pornography in his flat, of the sort you may find on the top shelf at your newsagent’s, and he has a minor conviction on his record. But we must all, I think, be glad that he was not tried on evidence obtained by underhand methods, for it is a fundamental safeguard of the citizen against the State that such citizen retains the right not to incriminate himself. It is a basic right, at the very heart of our criminal justice system, and if it were diluted we should all have reason to feel less safe.

This was the burden of the judge’s ruling. There was an additional danger to which he referred obliquely as “an even higher mountain to climb”, and that was the reliability of the “offender profile” which started it all. Had the police evidence been admitted before a jury, could not the defence have objected to Mr Britton’s inclusion as an “expert” witness in any case? Mr Justice Ognall gave several indications that he thought as much. He referred to the undercover operation as “fishing” for specific characteristics listed in Mr Britton’s “profile”, and depicted him at one point as the “puppet-master”. It was significant, he hinted, that little or no attention was paid to other letters which Stagg had written to a third woman, because they contained nothing to coincide with the personality postulated in the profile. Hence Mr Britton’s portrait of the hypothetical person responsible for Rachel’s murder took precedence over all else. If anything like this managed to seep into the system, any one of us facing charges might find ourselves judged according to the unsupported opinion of a person we had never met, and our denials held to corroborate our guilt (Britton had predicted that it would be part of the suspect’s personality to deny involvement with the crime).

Mr Clegg submitted to the court that Britton’s technique was “inherently prone to error and had not been accepted by the scientific community”. Expert evidence is only heard in our courts if the expert is accepted as such by his peers and has been exposed to critical scientific scrutiny, the results of that scrutiny having been published. Mr Clegg pointed out that Britton’s offender profile was speculative, intuitive and therefore unreliable; that the principles upon which it was based were not identified; that there was no means of knowing how he arrived at his conclusions; and that his assessment of the suspect took no account of the fact that his fantasy letters were written to satisfy the demands of the undercover agent.

The judge referred to a ruling by the Supreme Court of the United States (Daubert v. Merrell Dow Pharmaceuticals, 28 June 1993) in which it was stated that a trial judge, before admitting expert scientific testimony, should make a preliminary assessment as to whether the methodology underlying such testimony was scientifically valid and tested.

In England, there is also the long-established rule (in PhipsononEvidence) regarding evidence as to propensity. Evidence may not be given that the defendant “has a disposition to commit crimes of that kind”, in other words that he is the sort of man who might have been capable of committing the crime with which he is charged.

It is doubtful whether Mr Britton would have been called to give evidence. Britton’s contribution to the search for the killers of little James Bulger in Bootle consisted, according to the police, in assuring them that no adult was involved in the murder. He proved to be right. But since no adult, except a retarded one, would have covered the body with bricks or stuffed batteries in the boy’s mouth, the reasoning that children might be responsible was not a complicated one.