It is of considerable interest and is a substantial tribute to Satish Sekar that the police announced on 14th January 1996 that the investigation into the murder of Lynette White on Valentineʼs Day 1988 was to be re-opened. This case, otherwise known as the Cardiff Three, became eclipsed by a large number of other miscarriage of justice cases such as the Guildford Four, the Birmingham Six, the Tottenham Three, Judith Ward and so on. It is likely therefore that the significance of this appeal has been overlooked and is timely that the public and more particularly the authorities should be reminded about what went wrong in this case.
There is a ʻnew realismʼ permeating the thinking of official bodies, the higher judiciary, politicians and commentators on the criminal justice system. What this amounts to is a somewhat amorphous gut feeling that the scales of justice have tipped too far in favour of defendants. In a recent analysis David Rose cites the Chief Constable of Kent, David Phillips, with these words, “Our justice system has been Americanised, permeated with concern for criminal civil rights. We have produced a system which is so concerned with protecting criminals it works against the notion of justice. … The system allows offenders to avoid all responsibility because the trial is a game.”
It is this theme which has meant that the opportunity to rectify the real injustices of the system has been hijacked by the law and order brigade who believe that ʻprison worksʼ and that they have a monopoly on the truth about who is guilty. Besides the push towards building more prisons (privatised) increasing prison sentences, depriving the judiciary of their independence on sentencing, a proposed increase in cases attracting the mandatory life sentence and incarcerating more 12-14 year olds, there has been an unprecedented attack on basic freedoms that for too long have been taken for granted.
These freedoms were mostly eroded by the Criminal Justice and Public Order Act which came into force in 1995 and relate to the ability of ordinary people to gather for the purposes of protest or opposition, particularly where it involves the desecration of the environment.
This same statute also overthrow what has been termed the golden thread of British justice namely the Right to Silence and another basic and fundamental principle, that of the presumption of innocence. Almost without a second thought Michael Howardʼs proposals on disclosure which will effectively limit the extent to which the prosecution are duty bound to disclose the result of enquiries but place a greater burden on the defence to disclose in advance details of their case were welcomed by Jack Straw, then Shadow Home Secretary, and have produced little or no public debate. The fact is the majority of miscarriage cases arose through both deliberate and negligent non-disclosure by the Crown.
Somehow or another anyone who supports these principles or freedoms is deemed to be a liberal freethinker of the old order who has not come to terms with the reality of crime in the 1990s. However, what the new realists fail to address is that no one, least of all themselves, is protected by a system that locks up the wrong people.
Both the system and the means of investigation must be based on democratically accountable institutions and on basic principles of human rights that have been enshrined in charters and conventions throughout the world many times over. Apparently we expect adherence to these conventions and charters by Third World countries but seem quite unwilling to appreciate their relevance to our own backyard.
Here it has been said that the shortcomings of the past are behind us and we can now proceed on the basis that there is a new breed of policing and policemen. While recognising that a number of responsible police officers are trying to eradicate the malpractice that Sir John Woodcock described as ʻnoble cause corruptionʼ there is a long way to go.
The example which shows just how far we have to travel is the Cardiff Three because the main elements of this occurred between 1988 and December 1992. It is clear from this chronology that what went wrong has occurred within a framework broadly supported by the Police and Criminal Evidence Act 1984 (PACE). This Act was a product of a Royal Commission in the early 1980s which was itself born out of the Confait Inquiry examining the risk of wrongful conviction based upon unreliable confession evidence. This vein is richer than almost any other in providing miscarriage cases and one would have thought that by the 1990s the lessons would have been learnt. The recent Royal Commission, however, in line with the thinking described above seemed to concentrate far more on ensuring that the guilty get convicted than the innocent being acquitted. The Cardiff Three case occurred just in time for it to be considered in detail by the Commission. However, neither the Commissionʼs proposals nor any statutory enactments since have reduced the risk of recurrence.
The problems can simply stated, albeit not simply resolved. They arise primarily from what I have defined in writing and on film as ʻtargeting.ʼ Put shortly this is where an investigation operates upon preconceived notions of who is believed to be guilty. Such preconceptions may derive from criminal intelligence accumulated over a number of years or from prejudices about the kind of people who commit the kind of crime under investigation or from individual bits of fact. It leads to the exclusion of material that is seen to be inconsistent or inconvenient and a concentration upon avenues thought to confirm or corroborate the thesis being pursued.
What Sekar has demonstrated is that targeting can percolate through to the management of scientific evidence. In other words, it is not about what the jury did hear, namely that there was no forensic science link between any of the defendants and the scene of the crime, but about material the jury did not hear. It is an irony that this material concerns the very area that Michael Howard has claimed will be in the forefront of the war being waged upon the criminal – DNA.
Whilst one has reservations about elevating science into God-like tablets of stone there is no question that properly conducted scientific investigation is likely to yield far more profitable results than the interview room in a police station. The trouble is that forensic science costs money and despite the serious errors highlighted by the Maguire case, the Judith Ward case, the Kevin Callan case of 1995, the government has not been prepared to establish a nationally resourced forensic science service equally accessible to all. With the usual cutbacks and budgetary constraints that are being witnessed in all areas of social welfare both investigative agencies and independent scientists are strapped for cash and resources. At the end of the day shortcuts will be taken and quality will be affected. What is particularly important in the field of DNA is the provision of experts within the United Kingdom who are able to verify the work of the forensic science laboratories in this field both with regard to the inclusion and exclusion of suspects.
The recent Royal Commission discovered a serious dearth of those available to do this kind of work. Increasingly, over the last two years British lawyers have had recourse to both German and American laboratories which no longer feel able to continue to satisfy the demand in addition to their domestic workload. The real risks of this shortfall were clearly laid out in a television exposure by Equinox in 1995. Under no circumstances should DNA be regarded as genetic fingerprinting. But what it clearly can do with considerable confidence is eliminate and this is what was not adequately carried out in the Cardiff case.
I would like to conclude by praising Satish Sekarʼs determination, persistence and meticulous research against all the odds. In all these cases it is the individual efforts of those who have an undying quest for the truth who are able to touch the consciences of others. It is a refreshing testament to see such a work of principle when many of those who should know better have sacrificed adherence to basic principles in favour of the comfort of compromise and collusion.