Presumed Guilty

“I don’t care about the money,” is a frequent refrain of the innocent. “I want my name back and an apology.” Usually they get neither, because miscarriage of justice organisations and campaigners still don’t get it. Quashing a conviction is no more than half the job. The criminal justice system does not care about guilt or innocence; it never did.

An acquittal at trial is nothing more than an admission that the prosecutor could not prove the defendant guilty beyond reasonable doubt. It is not a declaration of innocence. Appeal is no better. If a conviction is quashed, it meant that the conviction was found to be unsafe. That is not the same as a finding of innocence. Occasionally judges make sure that there is no doubt, by saying that they are not finding the appellant innocent. There is no verdict of innocence, yet that is demanded now in compensation claims.

Exoneration

Annette Hewins, Sion Jenkins, Barry George and Andrew Adams are part of a growing trend. Their convictions were quashed on appeal, yet none of them have received a penny in compensation because the Assessor decided that they had not been exonerated. The fact that there is no verdict at trial or appeal in British law that guarantees exoneration seems to have escaped politicians, eager to save pennies at the expense of those wronged by society.

The former Unionist MP, Lord John Laird, sought clarification. Laird asked the government to “issue a practice direction to criminal courts ensuring judges declare any defendant acquitted at trial, or appellant whose conviction has been quashed as unsafe on appeal, as innocent at the close of the court proceedings.”

He also asked the government “whether they will ensure that appropriate compensation and aftercare is provided to such persons?” His question and the subsequent answer from Lord Tom McNally, a Minister of State at the Ministry of justice were ignored by media expressing an interest now the Supreme Court is considering these issues.

Practice

“Practice directions in the criminal courts are a matter for the Lord Chief Justice, not the Government,” said McNally. “It has long been an important feature of our criminal justice system that a person charged with an offence is presumed to be innocent until proved guilty. A person found not guilty is to be treated as innocent, as too is a person whose conviction has been quashed on appeal.”

But the practice is different. Exoneration is required for compensation now. “A person whose conviction is quashed on appeal may apply for compensation under Section 133 of the Criminal Justice Act 1988. Entitlement to compensation under that provision will be considered shortly by the Supreme Court in the case of Adams.”

Actually they can’t. The abolition of the Discretionary Scheme means that any person whose conviction is quashed in an in time first appeal will not qualify under Section 133. Even if there is no doubt about innocence whatsoever, they are not entitled to anything and the government not only knows it, but refused to right the wrong. The very same minister Lord McNally said as much previously when asked to restore the Discretionary Scheme by Lord Laird.

“The discretionary compensation scheme was abolished on 19 April 2006 by the then Home Secretary and the coalition Government have no plans to reintroduce it,” said McNally. “We will continue to consider applications for compensation under the statutory scheme, Section 133 of the Criminal Justice Act 1988, which fully meets our international obligations.”

It also excludes anyone who had the temerity to be acquitted or have their convictions quashed on a first appeal even if they are proved innocent later by the conviction of the real perpetrator.

Significance

Today, the real and sole murderer of 20-year-old Lynette White, becomes eligible to apply for parole. Jeffrey Gafoor admits that he alone is responsible. In the early hours of Saint Valentine’s Day 1988, Lynette was stabbed over fifty times. Her throat was slit. Still Gafoor continued his vicious attack. He stabbed her breasts and chest repeatedly – at least half of the offensive injuries were to that area of her body. The attack continued after she was dead or dying. The brutality obviously went far beyond what was required to kill her. It was cruel and in my view torture. Gafoor has never explained why Lynette suffered this horrific fate. And he has not explained why he stayed silent while five innocent men stood trial for a crime he admits he committed on his own.

The Cardiff Five ((Yusef Abdullahi, John and Ronnie Actie, Stephen Miller and Tony Paris) were charged with Lynette’s murder in December 1988. Almost two years later the Actie cousins were acquitted and the Cardiff Three were wrongfully convicted. It is now acknowledged to be one of Britain’s most notorious miscarriages of justice. It was quite obviously a sexually motivated homicide, even if that was not the label in use in the 1980s and ’90s.

Professor Dave Barclay conducted a review of the scientific evidence, which led t the vindication of the Cardiff Five and a measure of actual justice for the memory of Lynette White. He explains the significance of the crime being a sexually motivated homicide. “All but a very few are on the breasts, but sheʼs had her neck cut as well and wrists and so on”, he said. “Thereʼs a slash across the face. Itʼs a sexually motivated homicide – full stop. [I]tʼs a sexually motivated homicide and donʼt forget those stab wounds are through the puffa jacket and clothing and yet theyʼre still, theyʼre all concentrated on the breasts. Itʼs a single male sexually motivated homicide” [my emphasis].

So why the emphasis? Sexually motivated homicides are almost always committed by one man acting on his own, like Gafoor. Sometimes two vicious people combine and encourage each other to commit such crimes. Barclay and others cannot provide a single example in all the annals of crime where a murder like this was committed by five men, who made accomplices of two other sex workers, but let them live after committing such an evil crime. And all of this was allegedly done without leaving any trace, tying them to the scene or victim in total darkness. Sadly, Barclay has never given evidence about all this and more. So what would he have said if he had been given the chance? “Interestingly I give evidence more in Holland and places like that where they seem quite happy to have people give an overview”, he said. “I would have said whereʼs the evidence for any of that bullshit? I might even have said that in court”.

Evidence-led

Barclay demonstrated that the crime-scene evidence, forensic pathology, forensic psychology and blood distribution pattern was only consistent with one explanation. Lynette was murdered by one person acting on his own. That person, by his own admission and guilty plea – and evidence – was Jeffrey Charles Gafoor. For at least nine months the investigation followed the credible evidence – the crime-scene and forensic science wasn’t lying, but the original investigation took a diversion. It derailed the inquiry.

“[I]f you have two possibilities, you need very persuasive evidence to go for the least likely, so youʼve got a single male arguing with a prostitute over a deal and thatʼs what the scientist thought for nine months, or youʼve got this thing where Angela Psaila, [Mark] Grommek, at least and maybe somebody else and the five accused are all tearing round this room, sawing at peopleʼs necks and trying to cut their hands – stuff like this”, Barclay says.

“Angela Psailaʼs supposed to be asked to cut the neck or hands, I canʼt remember, or the wrist, so thatʼs so inherently improbable on every possible level: psychologically, practically and just they couldnʼt do it in that dark room without leaving footwear and finger-marks in blood and if you actually consider something I did after I totalled up the number of people that were supposed to have held the bloody knife”, he continues. “Thatʼs four people, so there are four people with blood on their hands and theyʼre going out without leaving finger-marks in blood or whatever, so I think that was a major thing. Occamʼs Razor is a thing that we use a lot in forensic science, ʻin all probability, the simplest explanation is the correct oneʼ, and you have to be really sure that the simplest explanation isnʼt correct and that was something that was not done either”.

The Cost of Silence

The methods that Barclay used in his review and subsequent work on this case were available in the 1980s and ’90s. There was no reason for this miscarriage of justice to be allowed to occur. Jeffrey Gafoor was the one person who knew for certain that not only were the Cardiff Five innocent, but that they were suffering a grave injustice for his crime. He chose to stay silent and let their lives be destroyed Ronnie Actie and Yusef Abdullahi both died before reaching fifty. John Actie, Stephen Miller and Tony Paris still endure the unjustifiable whispering campaigns in a case that disgraces justice. Meanwhile, the real killer, becomes eligible to apply for parole today after completing a tariff that was incorrectly applied and failed miserably to reflect the crimes Gafoor committed.

There is no excuse for the lives of the Cardiff Five and their families to have been wrecked. There is no excuse for Lynette’s family to have been denied justice for so long. While Gafoor is not responsible for justice miscarrying, his cowardly decision to refuse to take any responsibility for his crime when it mattered destroyed several lives. Do the courses and rehabilitative exercises that he experiences in prison to prepare him for parole bear this in mind? If not, why not? The real and sole killer received an inappropriately lenient tariff that further insults all the victims of this tawdry injustice – one that simply won’t go away until justice is allowed to reign once and for all.

Vindication

Almost 20 years ago Zandra Mitchley and teenagers Shaun Nel and Claire Silberbauer were murdered in a notorious armed attack on a car approaching Eikenhof, which is near Johannesburg. All the occupants were white people with no connection to the Apartheid state.

The attack shook the country. It happened as South Africa’s transition from Apartheid to majority rule was taking shape. If its aim was to derail that process it almost succeeded, as the police and prosecutor tried to make political capital from the tragedy, accusing and falsely convicting three innocent men – men they knew were innocent.

The African National Congress and its armed wing Umkhonto we Sizwe had ended their armed struggle against Apartheid. This case was used to try to claim that the ANC were negotiating in bad faith – they were not. The interests of justice were disgracefully sacrificed to shameful political expediency and the perceived interests of a criminal regime – a crime against humanity, no less. In a system pock-marked by terrible affronts to justice this remains one of its worst ever miscarriages of justice.

It is the clearest of South Africa’s vindication cases – a difference-making travesty of justice that could and should have ensured that the new South Africa, the so-called Rainbow Nation, has a criminal justice system that is the envy of the world. Instead apathy, cynicism and political opportunism reign in a sorry tale of justice betrayed again and again.

Shameful

Three men were wrongly convicted of the three murders and the attempted murder of Norman Mitchley and Craig Lamprecht in the Eikrenhof attack. Siphiwe James Bholo, Sipho Gavin and Boy Ndweni (the Eikenhof Three) had strong alibis that they were in Wesselsbron, about 380 kilometres away when the attack occurred. It mattered not a whit to investigators and South Africa’s criminal justice system past and present.

Alibi witnesses were shamefully bullied. Perjury was committed. There was colossal non-disclosure of vital evidence that not only proved the Eikenhof Three innocent, but that the whole case was a gross conspiracy to pervert the course of justice. It was well known that the Eikenhof Three were members of the African National Congress (ANC) and that the attack had been organised and executed by the Azanian People’s Liberation Army (APLA) – the armed wing of the Pan Africanist Congress of Azania (PAC).

This information and more was ruthlessly suppressed. But even after it emerged the South African criminal justice system kept the lid on the scandal, denying innocent men the clear acknowledgement of vindication that had been proved beyond reasonable doubt – any really. Despite a plethora of causes for concern there has been no investigation of the notorious case to establish what went wrong and prevent repetition to date, let alone criminal sanctions of those responsible.

Precedent and Necessity

The convictions of the Eikenhof Three were eventually quashed on appeal. A retrial was ordered, but it has never taken place and almost certainly never will. It leaves an element of doubt about their innocence where no credible doubt exists. Their case is too important to be left in limbo. It is part of a wretched pattern of abuse of justice, even in vindication cases like this.

The case of the Eikenhof Three is the difference-making case for South Africa. During the transition from Apartheid the Truth and Reconciliation Commission (TRC) was established. Among those who applied for amnesty was Phila Dolo. He ordered the attack. A raid on a PAC (Pan Africanist Congress of Azania) ‘safe-house’ in Botswana yielded documents including Dolo’s report on the Eikenhof attack.

There is no doubt that it was an attack carried out by the APLA. Even weapons used in the attack were linked to Dolo and therefore the APLA. Gavin and Bholo had been sentenced to death and Ndweni to 17 years – only his youth saved him from a sentence of death for a crime the authorities knew full well none of the Eikenhof Three committed.

Despite a change in government – a landslide in favour of three innocent activists’ party the ANC – they remained in prison. Even after the TRC reported, giving amnesty to Dolo, meaning it believed his account of the Eikenhof attack, the Eikenhof Three were not immediately freed. Absurdly it was the PAC who picketed the jail they were held in, demanding their release.

And now over a decade after they were released on appeal with a retrial ordered they remain cheated of even an explanation of why they were deemed expendable casualties of a war that had ended and of a peace process that has yet to deliver justice and an apology to them. It is the very least that they deserve. In fact, it is the very least that the new South Africa deserves.

Injury to Insult

The Eikenhof Three are still waiting for apologies for what they went through almost two decades after they were subjected to a terrifying ordeal that could have ended on the gallows for two of them, even though police knew beyond doubt who was really responsible for at least four of the six years they were in prison for a crime they did not commit.

Siphiwe Bholo, Sipho Gavin and Titi Boy Ndweni were framed for the murder of Zandra Mitchley, Shaun Nel and Claire Silberbauer and the attempted murder of Norman Mitchley and Craig Lamprecht as Apartheid was coming to an end. The Azanian People’s Liberation Army (APLA) quickly claimed responsibility for the Eikenhof attack, which occurred on March 19^th 1993.

The current President of the Pan Africanist Congress of Azania (PAC), Letlapa Mphahlele had documents verifying this seized by police when he was arrested in a raid in Lesotho in 1995. Despite this the Eikenhof Three remained in prison until 1999. Shamefully, these documents have gone missing along with much of the original docket.

“The time we have wasted before in prison, nothing can buy that, but I think there’s a lot that the State should have done for us”, Ndweni told me exclusively. “There are a lot of programmes that they could have done, like for instance, if you realise that you have wasted somebody’s time, you can assist that person. For example, take him to school and make sure that he has a roof over his head. Those are some of the things that they should have done. We had to get them for ourselves”.

Regret

However while the State and police have not apologised at least one organisation regrets what they endured. “On behalf of myself and the Pan Africanist Congress of Azania, I hereby express our sincerest regret that you were unjustly arrested, tried, convicted and sentenced following the Eikenhof Operation of March 19^th 1993”, Mphahlele wrote to each of the Eikenhof Three in December 2010.

The current President of the PAC and its only MP continued. “The operation was planned and executed by members of the Azanian People’s Liberation Army (APLA), the military wing of the PAC. We were taken aback when you and two of your colleagues were arrested and suffered for something you certainly knew nothing about. Although it is a long time since the incident took place, I hope you will accept our humble gesture of regret over what you subsequently went through”.

A Welcome Gesture

It was accepted by the Eikenhof Three. Disgracefully, it remains the only apology, or even expression of regret, they have ever received over their ordeal. “Regarding PAC and APLA I don’t have a problem about them, like they have apologised to us for us being convicted of their deeds,” Ndweni told me. “With regards to justice system, I think there’s a lot that needs to be done about it”. His sentiments are echoed by Gavin and Bholo, although the latter says the PAC don’t owe him an apology.

“I do accept their apologies”, Mr Bholo said. “Whatever happened then happened during struggle, so they were fighting a just cause … according to them they were doing the right thing. I don’t have a problem with their apologies. In fact, I would say, they don’t owe me any apology, because they are not responsible for my arrest. The only thing that was supposed to happen was the proper investigation and the proper presentation of the case in court and it could have resulted in the right people being arrested”.

The statement of regret by Mr Mphahlele remains the only apology that the Eikenhof Three have ever received for their ordeal, even though there is no doubt that they were completely innocent of any involvement in the Eikenhof attack.

Bholo calls for apologies from those he holds responsible. “They have to tell us exactly what happened, including the government, I would say so, because there are different heads to that – the head of Justice and the head of Safety and Security”, he said. “The ANC, they don’t, but the Justice Department, they do”.

Nevertheless, Ndweni believes that the African National Congress (ANC) hasn’t done enough to help them, but the apologies he wants most are not from them. “I would say the police, the prosecuting authority, the witnesses who gave the false evidence about us”, he says. Ndweni says that the Justice Minister owes him an apology too and that he is ‘disappointed’ that he has not received such an apology.

The twentieth anniversary of the Eikenhof attack is less than a week away. Even now it seems sorry is the hardest word to say.

Important

“The science is important”, said Mark Evans QC in his closing argument on behalf of John Pope, in his retrial for the murder of a 34 year-old Karen Skipper. “That’s why you have the experts. It is important you understand the purpose of it and the limits of it. As far as science is concerned, you can take it from them. What deductions you make, is entirely for you. Where they and I part company is where they cease to talk about science and resort to amateur sleuthing”.

He criticised forensic scientist Michael Appleby in particular. Mr Evans said that Mr Appleby was emphatic that the blood-stain on Mrs Skipper’s knickers was wet and not dilute. “That’s important”, Mr Evans said, “as that is based on his observations. How could it not be diluted? We know that the clothes were damp from a heavy dew that night”.

Rehydrated

Mr Evans advised the jury to apply their common sense to all of the evidence. “When it comes to looking at dew and its effect on clothes, you know better than anyone”, he said. He pointed out that both the pocket of the jeans and the knickers which contained the blood-stains were exposed to the elements. “How could they not be dilute?” he asked before informing the court that the scientists said they were not.

Mr Evans conceded that the older the stains were the harder it is to rehydrate. He conceded that liquid would leach out. He questioned the size of both stains that had been reported. Every attempt to photograph the blood-stain on the knickers failed, but fluorescence would be obtained when exposed to different types of light. He suggested that there was fluorescence and that it was consistent with a smaller stain on the knickers that liquid (blood) had leached out from. This, he suggested, was evidence of rehydrated blood.

“The prosecution case is that it was deposited in attack, but in all probability it will be damp already”, Mr Evans said. He told the jury that the effects of leaching of fresh blood would have been noted and mentioned by the scientists. They did not. “Doesn’t it point to stain being much older?” Mr Evans asked. “Some diluting effect was inescapable [but] they will not accept it; did not see it”.

As Good as Any Other

Mr Evans told the jury that when Mr Pope was interviewed by police in 2007 he was told there was forensic evidence linking him to the murder of Karen Skipper, but nothing specific. That Mr Evans said, meant that Mr Pope, a man of limited intelligence, had to guess correctly that it was blood and concoct an explanation of it on the spot.

He told the jury that hands go into pockets at an angle and that the position that it landed in was consistent with Mr Pope’s account. [Nigel] Hodge and [Gillian] Leak had, said Mr Evans, accepted that the two spots will have coincided, but could only have done so when the jeans are being worn and done up and therefore, if the two spots had coincided at same time, the “only possibility is through the pocket and that is exactly what Mr Pope says”.

Mr Evans told the jury that if a blood-stained hand had been inserted in the pocket, then it would be elsewhere, but we are talking about tiny amount of blood. He invited the jury not to reject Mr Pope’s explanation of the earlier encounter with Mrs Skipper and how his blood could have got onto her clothing. “We can’t say, ʻthis is what happened’, all we can do is point out the possibilities”. He invited the jury to put their hands in their pocket. “Why can’t it be done?” he asked. He suggested that a tissue is like a sponge that could absorb blood and expunge it if pressure was applied and then soak it up again. When that process is finished, Mr Evans argued, more blood would be on the outside than the inside. Mr Pope’s account was he submitted, therefore, a perfectly credible explanation.

“Mr Murphy [Ian Murphy QC – the prosecutor] is quite wrong when he submitted that consensus of scientists is that you can consider this as incredible”, said Mr Evans. If something can happen, he suggested then, sometimes, invariably it will. “If the potential is there, the possibility is clearly there. They [the prosecution] have to prove that it did not happen in this case”.

Mr Evans insisted that the reconstruction conducted by Mrs Leak showed that it was possible for the jeans and knickers to have touched each other, thereby accounting for both stains. “Anything’s possible”, said Mr Evans, who insisted that it was for the prosecution to prove that it did not happen. “The point I made was for that to have happened by pure accident, both garments, both spots had to touch each other”. He told the jury that the opportunity existed. The jeans and knickers had been packaged together while damp with the belt. They had been taken out to retrieve the belt, which had been taken out before they were repacked. This, Mr Evans suggested, provided ample opportunity contact and therefore transfer. “The odds of it happening in that way are, I suggest, pretty high”, said Mr Evans.

He then highlighted what he contended was a real problem with the direct contact theory. He told the court that the jury had been assured that both blood-stains were direct contact stains from a pin-prick of blood, but while one was a smear the other was not. That, he suggested, was a real problem. The stain on the knickers had been produced by a wiping action that left no blood on the ridge, but on the pocket-lining it was a smear. “Ask yourselves how can it be that there is a wiping action with smearing on knickers, but with pocket, the same action, but no smear?” said Mr Evans. “There is a basic inconsistency”. He pointed out that anyone depositing the stains in the way the scientists and Mr Murphy had claimed would have had to remove the shoes, belt and trousers before getting access to the knickers. “Where’s the rest of the blood?” Mr Evans asked. “[It’s] extraordinary that there is no blood, you may think”.

Other Possibilities

“There are other possibilities in this case which you have to take on board and for this reason: if Phillip Skipper was the killer, then the blood-stains on the clothing doesn’t matter, does it?” said Mr Evans. “If you think Phillip Skipper could have been the killer, then that’s the end of it”.

Mr Evans detailed the circumstantial case against Mr Skipper that included the apparent lack of interest he had shown in the whereabouts of Mrs Skipper after she went out with the dogs that night. “So where does all this point you?” asked Mr Evans. “The prosecution tell you John Pope’s story is lie after after lie, but could a man like Pope really have made all of that up on the spur of the moment? We suggest, not in a million years. At the end of the day, you have to be sure that all of the other explanations fail and it must have been John Pope. Can you possibly do that in this case?”

Dog’s Breakfast

“You don’t get a pin prick of blood from a dog-bite”, Mr Evans told the jury. “If that dog [Samson] had attacked, you would not get a pin prick of blood”. Mr Evans reminded the jury that there was plenty of evidence that Samson in particular was fiercely protective of Karen Skipper. Mr Skipper, he reminded them, had suggested that the killer must have been known to her [he had mentioned Jimmy Turner and the man known as Steve in that context] or that there had been two killers.

While the prosecution dismissed Mr Pope’s explanation of the blood-stains as a “complete fantasy”, Mr Evans said that it had “the ring of truth about it”. Mr Pope did not know what forensic evidence the police had linking him to the murder when he was questioned. It could have been anything, Mr Evans said, but he gives them an account that explained bloodstains being found. Mr Murphy had previously told the jury that Mr Pope knew that it was blood because he had attacked Karen Skipper and been bitten by one of her dogs. He had then transposed that event to an invented incident three weeks earlier.

“Where does all the scientific evidence take you?” asked Mr Evans. “You can’t be sure of very much at all, save it (bloodstains) was there. The prosecution has to prove Mr Pope’s explanation has to be wrong. It’s as good as any other”.

Consequences

He had previously said that there were no consequences for Phillip Skipper if the jury thought it might be him and that there were none for Richard Mead either, but it was a different story for Mr Pope. “Remember, the consequences are serious”, said Mr Evans. “He has already been through one trial and an appeal process. It is so important that you get this right. If you think the forensic evidence was flawed, then convicting him on that basis would be wrong”.

The Honourable Mr Justice (Sir Roderick) Evans KT is summing-up. The jury is expected to be asked to begin considering their verdict on Friday. John Pope denies murdering 34 year-old Karen Skipper, whose body was discovered submerged in the River Ely in the morning of March 10^th 1996.

Guarantees

The families of murder victim Karen Skipper and her estranged husband Phillip who stood trial wrongly for her murder want a guarantee from the Secretary of State (Minister) of Justice that in the absence of compelling new evidence such as DNA, acquittals must be respected. They claim that the Crown Prosecution Service (CPS) could never have charged Mr Skipper, if he had been alive, on such evidence as Mark Evans QC allowed to use, especially as there was DNA evidence implicating another man, Evans’ client, so why was the defence allowed to do it without requiring a proof of guilt?

The victms’ families are shocked and disappointed that the criminal justice system allowed them to be victimised again with such poor quality evidence. A prison informer, Paul James had claimed at Mr Skipper’s trial in 1997 that Skipper admitted accompanying Mrs Skipper to Birdies Field that fateful night, but James refused to co-operate when called by Pope’s defence.

“I know that he [Mr Skipper] is dead and can’t defend himself,” James said, before the defence abandoned the attempt to get evidence from him and relied on statements he had made previously, along with evidence from earlier trials.

Quality

The quality of evidence did not improve. Mr Skipper’s neighbour, Pauline Horton, came forward after 13 years, claiming that she saw Mr Skipper following his wife towards Birdies Field in Cardiff on her last walk. She insisted that she was afraid of the Hell’s Angels, but neither Mr Skipper nor his friend David Davies were Hell’s Angels.

Horton accepted that both Mr Davies and Skipper had been perfectly nice to her. At best, she was, as prosecuting counsel Ian Murphy QC, had suggested, mistaken, but she would not countenance her evidence being rejected. “Don’t you call me a liar!” she told Mr Murphy angrily, but her evidence did not stand up. Perhaps there was a more sinister explanation of her evidence than Murphy suggested.

Scientifically Ludicrous

DNA from blood-staining on intimate areas of Mrs Skipper’s clothing linked Mr Pope, not Mr Skipper, to the crime. Mr Evans had claimed that the blood-stains had rehydrated from dew overnight and given the impression of fresh blood despite four scientists agreeing that direct contact was the most likely explanation and that rehydrated blood appears different from fresh blood.

Mr Pope’s explanation that Mrs Skipper’s dog bit him three weeks earlier after he removed a thorn from its paw and that Mrs Skipper had given him a tissue and transferred the blood to her pocket was rejected by the jury. It was a fanciful explanation and one that was flatly contradicted by the science.

Obscene

Mr Skipper had been eliminated as the source of that blood on the jeans fifteen years ago. At the time the prosecution claimed that it was not important. They had little choice as the prosecution was dead in the water if that evidence was acknowledged for what it was – proof of innocence. The prosecution in 1997 chose to ignore or minimise the importance of that evidence, which was seized on by Mr Pope’s QC, Mark Evans.

But the blood-staining was on intimate parts of Mrs Skipper’s clothing and was therefore quite obviously significant. It was clearly very inconvenient in the prosecution of Phillip Skipper.

If the significance of those blood-stains had been fully appreciated during the original investigation in 1996 or during Mr Skipper’s trial in 1997, it would have been crystal clear that Mr Skipper was innocent. That in turn would have ended his ordeal promptly and prevented a deplorable defence from being gifted to an unscrupulous man.

Nevertheless, Mr Pope was allowed to ignore Mr Skipper’s acquittal and accuse him twice more without any standard of proof.

“It should not be allowed”, said miscarriage of justice survivor Michael O’Brien. “A similar thing happened to me after I won my appeal. Phillip Skipper was entitled to be presumed innocent after his acquittal. Only compelling new evidence like DNA should allow an accusation like that against a person who has been acquitted or had their conviction quashed”.

Mr Justice (Sir Nigel) Davis at least had the good grace to stress that it was owed to the memory of Phillip Skipper to acknowledge his innocence.

The Rules of the Game

The family of murder victim Karen Skipper took a long time to accept that her deceased husband Phillip was innocent, but they are now convinced and share the outrage of his family, which includes the mother of his daughter as well. They all believe that, rather than observing the trial of her murderer, John Pope, they were forced to endure yet another trial of Mr Skipper – a man who could not defend himself and whose rights and reputation were given no legal protections at all.

They are further aggrieved that this time Pope’s retrial occurred without any safeguard at all of Mr Skipper’s right to be presumed innocent. Mr Pope, through his counsel, Mark Evans QC, was given carte blanche to put Mr Skipper on trial yet again, only he could use so-called evidence that had been ruled inadmissible during Mr Skipper’s trial in 1997.

The families of Karen Skipper and Phillip Skipper are united in their disbelief that the criminal justice system tolerated this. They say that relying on old evidence that had failed to convince the jury first time round and incredible new evidence that should have been laughed out of court meant that there was no burden of proof on his accusers – Mr Popeʼs defence. Where, they ask was the respect for their human rights? Where, in fact, was respect for the law?

The roles appeared to have been somewhat reversed. Prosecuting QC, Ian Murphy, was bound by the rules of evidence and Mr Popeʼs right to be presumed innocent and he observed his burden scrupulously. Mr Evans effectively was prosecuting Mr Skipper, but there were no rules governing what he could say and do.

Scrupulously Unfair

The judge, Mr Justice (Sir Roderick) Evans, bent over backwards to accommodate Mr Pope – even giving a bad character direction on Mr Skipper despite the lack of convictions justifying it. Pope was allowed to sit back while his QC prosecuted Skipper with no constraints. Phillip Skipper could not defend himself from the character assassination and nobody represented his interests, even though it was in the interests of the prosecution of Pope to do so.

This was a shocking abuse of the law and raises the question of why the system did not provide lawyers to represent the rights of the families of Phillip Skipper and Karen too. It got far worse. Mr Evans had even suggested that if the jury thought that it could have been Mr Skipper, then they should acquit his client. That outraged miscarriage of justice survivor Michael O’Brien.

“I don’t know how they can get away with saying those words to the jury and why the judge didn’t step in because it’s already been established in a court of law that Mr Skipper was acquitted and under European law, it says once you’re acquitted, you’re entitled to the presumption of innocence, so how they’ve managed to get away with this defence”? said O’Brien.

Mr Murphy could have done so far more robustly. After all, it was in his interests to prove Mr Skipper innocent, as that would have cut the ground out from beneath the deplorable defence tactics. Sadly, this appears to be a trend in such prosecutions – nobody represents the rights of the wrongly accused.

“Well it more than beggars belief. It just makes you angry, you know, the fact that a man who can’t defend himself”, Mr O’Brien continued. “That’s like picking on a vulnerable person and this is picking on someone who can’t defend himself and it’s the same principle behind it and it shouldn’t have been allowed”.

Inadmissible evidence and also the quite frankly ludicrous evidence of Pauline Horton masqueraded as ʻproofʼ of Skipperʼs guilt. The Crown could never have prosecuted such a shoddy case, so why was a defence lawyer allowed to do so by the back door?

“Well I think we’ve got to define what significant new evidence is”, O’Brien says. “Let me put it clearly, unless there is DNA or something of that calibre, or somebody who can describe them to a tee who didn’t know the person who had done the crime, but if they’re too scared to come forward where you can actually prove there was no collusion, then you shouldn’t be allowed to produce this kind of evidence and blame other people as the defence, because that is just attacking somebody’s innocence again”.

O’Brien is outraged. “I think that goes against everything that the court says the innocent person is entitled to and which an acquitted person is entitled to – the presumption of innocence – and I think the only reason why Pope’s defence has got away with this is because they know they have legal privilege”, he says. “They know they are supposed to go on the facts. What evidence is there that Phillip Skipper has done this crime? It should never have arisen a second time, but they’ve done it. It has to be stopped”.

And there’s another issue. Why did the prosecution fail to demonstrate Mr Skipper’s innocence when the evidence to do so had been there all along?

Lax Procedures

The families of a murder victim and her late former husband – he was wrongly accused of that crime fifteen years ago – joined forces to slam what they believe are lax procedures at a recent trial. They claim that Phillip Skipper was wrongly accused all over again at the retrial of former labourer John Pope – that it was more like Mr Skipper that was on trial than Mr Pope.

Mr Skipper was not alive to defend his reputation. Mr Pope was found guilty of the murder of Karen Skipper for the second time last week. He had been convicted of the murder in February 2009, but the Court of Appeal quashed the conviction last year and ordered a retrial. Its judgement still has not been published.¹

The Presumption of Innocence?

Mrs Skipperʼs body was discovered in the River Ely in Cardiff on the morning of March 10th 1996. A year later her estranged husband Phillip who died of cancer in 2004 was acquitted of her murder. According to the criminal justice system, the presumption of innocence was never taken away from Phillip Skipper. The Fitted-In Project followed the case carefully. It was after all Walesʼ second vindication case in the DNA age.

To the disgust of the families of Mrs Skipper and Mr Skipper, Popeʼs defence QC Mark Evans turned it into Mr Skipperʼs third trial. Having attended this trial, we agree that it was hard if not impossible to spot any evidence of Mr Skipper being presumed innocent.

We are surprised that despite the European Convention of Human Rights being incorporated into UK law in 1998, the Article 8 Right to Family Life of Mr Skipper’s family was paid such scant regard. Similarly, Mrs Skipper’s family’s rights were not defended either. This is applied in the setting of the tariff too.

Lip Service

The families insist that there was no presumption of innocence for Mr Skipper despite his acquittal, but the coalition government says there is no problem.

“It has long been an important feature of our criminal justice system that a person charged with an offence is presumed to be innocent until proved guilty”, said the Minister of State at the Ministry of Justice, Lord (Tom) McNally. “A person found not guilty is to be treated as innocent, as too is a person whose conviction has been quashed on appeal”.

Fine words, but the treatment of Mr Skipperʼs memory in this trial shows that the practice is vastly different. Mark Evans QC lost no opportunity to accuse Mr Skipper of his estranged wifeʼs murder, using evidence that had been rejected by the jury that tried and acquitted Mr Skipper and evidence that was inadmissible against him in that trial.

This was a thinly disguised prosecution of a man who could no longer defend himself – a prosecution that had no burden of proof and for whom there appeared to be no rules on the admissibility of evidence.

There was absolutely no presumption of innocence for Mr Skipper and no thought was spared for the feelings of his child – still a young teenager. The quality of the so-called evidence used in this back-door prosecution of Phillip Skipper was woeful. There ought to be rules governing such tactics and consequences for such conduct.

1 The judgement was published subsequently: The Editor.

Satish Sekar explains the case to Colombia’s finest forensic scientists.

Despicable

John Pope was a suspect originally in the murder of Karen Skipper, which occurred in Cardiff in March 1996. He was eliminated, incorrectly as it turned out. Sadly the late Phillip Skipper stood trial for a crime that he did not commit the following year. An inquiry by West Midlands Police concluded that the decision to prosecute Skipper was justified. It certainly was not. The Crown Prosecution Service (CPS) should not have allowed it to come to trial.

The scientific evidence was not allowed to speak as it could and should have. Blood-staining in an intimate area of the victim’s clothing established his innocence through forensic science techniques that were available at the time. DNA testing established that it was not his blood, nor that of his estranged wife Karen.

That should have eliminated Skipper from police enquiries, but desperate times called for desperate measures. A ludicrous explanation was advanced – one that hinged on Mrs Skipper never having washed resold jeans that she bought at a market several weeks previously. Phillip Skipper was rightly acquitted, but the damage had been done, despite the absence of both smoke and fire.

Remorseless

Nevertheless, his memory – he died of cancer aged just 48 – was put on trial again three times. It was Pope’s DNA and his explanation of the transfer of blood that he claimed caused that positive DNA identification stretched credibility. Was it possible? Yes. Was it likely? No.

Pope never took responsibility for Karen Skipper’s murder. That’s his right, but blaming an innocent man who could not defend himself three times was reprehensible to put it mildly. And after being found guilty again his QC Mark Evans put forward mitigation on his behalf – the closest that Pope ever came to accepting responsibility.

Shamefully, the tariff was exactly the same as before, but there was no recognition from the court of the ordeal of Phillip Skipper and his family, not even the acknowledgement of his innocence that the first trial judge Mr Justice (Sir Nigel) Davis had given. Why not? Instead, the second trial’s judge, Mr Justice (Sir Roderick) Evans had decided to give the jury a bad character warning about Skipper even though he had no relevant convictions.

After Jeffrey Gafoor was brought to justice for the murder of Lynette White, allowing the innocent to suffer for your crime was supposed to be taken into account. In fact, it has never happened – an appalling message to give to killers as it tells them that there are no consequences for allowing the innocent to go to jail for their crimes.

A Total Disgrace

The Fitted-In Journal covered Pope’s retrial last year (2011) – many other mainstream media did not – and at least some of those that did simply didn’t get it. Another miscarriage of justice was unfolding before our eyes, but few media were interested in it. They still aren’t even though this case bears all the hallmarks of a serious travesty of justice and wrecked lives – many of them.

Karen Skipper’s family had been cruelly deceived. They had originally thought that ‘Ginger’ (Skipper’s nickname), was guilty and after having let him into their family, they hated him with a passion. Skipper died young of stomach cancer, maintain his innocence to the end. They were wrong about him and accept that now, but where are they supposed to put their guilt now? How are they to come to terms with having hated an innocent man?

Neither Victim Support, nor the Miscarriages of Justice Support Service visited either Skipper family – Philip’s or Karen’s – to assist them through a very difficult process that they had to endure thrice with a fourth likely should Pope appeal. That included a girl who had been forced to hear about her deceased father being wrongly accused of murder three times while barely in her teens. Her mother could have painted a different picture of Mr Skipper than the one that emerged at trial, but the court never heard from the mother of his child.

Meanwhile, Pope’s defence could hurl any mud, however nonsensical, with no controls, while they effectively prosecuted Phillip Skipper once more, but without a burden of proof. There was no representation for Phillip Skipper’s estate, or his family, let alone redress. Why not? There was clear and unequivocal scientific evidence that he was innocent.

Outrage

Pope’s defence even demanded an acquittal for their client if the jury thought that Skipper might have done it. Had the Crown tried to prosecute Skipper on such evidence, it is inconceivable that the Court of Appeal would have given permission for double jeopardy to be set aside.

It was a rehash of the original Skipper trial, including evidence the original prosecutor thought not worthy to put before the jury, a ‘new’ witness whose account beggared belief and there was DNA against someone else – a suspect who had occurred in the original inquiry – Pope. Why was this allowed?

The CPS could not hope to bring such a prosecution to trial now, so why was Pope’s defence allowed to do so? There was outrage aplenty for Bob Dowler when convicted serial killer Levi Bellfield tried to point a finger at him and rightly so, but where is the outrage for Phillip Skipper, who had no opportunity to even defend himself and where is the outrage for his daughter?

Obligations

It was apparently a matter of pride for South Wales Police to put right what they got wrong in the Lynette White Inquiry. They failed to do so, but in the Karen Skipper Inquiry, they refused to even try. Why were they allowed to get away with that?

Where was the outrage for Karen Skipper and her family? Where was the outrage for Phillip Skipper and his family? And where is society’s outrage? Why do we tolerate millions of pounds of our resources being thrown away without consequences or even accountability in cases such as this?

Where is the investigation of the Karen Skipper Inquiry to establish how the wrong man originally stood trial and if any errors occurred that could have prevented repetition? In 2009 after Pope’s original conviction I asked South Wales Police to investigate what went wrong. They refused. The result was a colossal waste of public resources, time and unnecessary suffering imposed on a young girl who deserved far better. She still does.

Two trials and an appeal later, there is no excuse for failing to investigate this and other vindication cases thoroughly, but there is one vital lesson to emerge from the Lynette White Inquiry Police Corruption Trial. South Wales Police and the criminal justice system cannot be trusted to put right what they got wrong.

1 This article was originally published in the Fitted-In Journal, which was sadly destroyed by hackers and is no longer available. The content of this article is relevant to some of our projects – hence our republication of it. Satish Sekar is the author of Fitted In: The Cardiff 3 and the Lynette White Inquiry (The Fitted In Project, 1998).This article was uploaded onto this site after the publication of his second book on the Lynette White Inquiry. The Cardiff Five: Innocent Beyond Any Doubt was subsequently published by Waterside Press in 2012.

The Colombian scientists listening with disbelief at how the injustice suffered by the Skippers occurred.

]]> https://fittedin.org/fittedin/?feed=rss2&p=1192 4 https://fittedin.org/fittedin/?p=879 https://fittedin.org/fittedin/?p=879#comments Tue, 30 Dec 2014 21:43:06 +0000 http://fittedin.org/fittedin/?p=879 Read more]]> by Satish Sekar © Satish Sekar (December 30^th 2014)

Referral

The Criminal Cases Review Commission (CCRC) recently announced that it would investigate the conviction of Jordan Cunliffe. Then just 15 Cunliffe was convicted of the shocking 2007 murder of salesman Garry Newlove. Mr Newlove was kicked to death outside of his home in Warrington. A group of youths looked on.

Cunliffe was convicted using the controversial centuries old legal principle of Joint Enterprise. This was also used to secure convictions for the murder of aspiring architect Stephen Lawrence. The CCRC will begin its investigation of Cunliffeʼs case in February 2015. Newloveʼs widow, Helen, was made a Baroness in 2010. That year she expressed strong support for Joint Enterprise.

“Would you stand there watching somebody else kicking and punching”?, she said in 2010. “Would you actually think that was right to watch, even if you didn’t do the act? They were all as guilty as the person doing the act”. Cunliffe was there, but insists that he did not take part in the attack. Along with Adam Swellings and Stephen Sorton, Cunliffe was sentenced to life imprisonment.

Victimʼs Commissioner

In 2012 the Conservative peer belatedly succeeded Louise Casey as Victimsʼ Commissioner. The duties of the Commissioner is to ensure that victims are treated with the utmost respect. The Commissioner must be independent of any political partiality or persuasion, meaning that Baroness Newlove must keep her political beliefs out of her role as Victimsʼ Commissioner.

The following principles are core to the office of the Commissioner: inclusivity representing all victims and witnesses, including the most vulnerable members of our community; transparency in the way that decisions are made, business is conducted and the office operates; and encouraging responsibility through work with all criminal justice and local agencies to ensure the voices of victims and witnesses are heard and that each organisation takes responsibility for victims and witnesses.

As it says on its website, Newloveʼs role as Victimsʼ Commissioner is to “promote the interests of victims and witnesses, encourage good practice in their treatment, and regularly review the Code of Practice for Victims which sets out the services victims can expect to receive”.

The Code details the treatment that victims are entitled to receive from the various agencies. It was revised recently. Among the rights is information on restorative justice. “Victims should be put first in every case no matter what the crime or sentence”, Newlove said recently. “Crime can rip victims and their families apart – they deserve to be treated with respect and dignity by everyone involved. Although sentencing in individual cases is a matter for the courts – they still need to be sensitive to those who have suffered loss”.

More Equal Than Others

Victims must be treated with respect. Nobody could disagree, but does this apply to all victims and if not why not? We have pointed out previously that the Cardiff Five is an absolutely unique case. Not only were they the victims of a truly shocking and appalling miscarriage of justice, but also a crime – perjury. The conviction of Mark Grommek, Angela Psaila and Learnne Vilday in 2008 for that offence meant that they were victims of a crime.

We pointed this out to various agencies, arguing that these victims had been thoroughly let down. The judge who sentenced the real killer of Lynette White, Jeffrey Gafoor, to life imprisonment told him that the most serious aggravating circumstance was that he had allowed innocent people to go to prison for a crime he knew he had committed.

The Cardiff Five were plainly victims, yet they were not accorded any of the courtesies due to victims. They were not given the right to make victim impact statements before the tariff was imposed (see The Rights of the Forgotten Victims – Victim Impact Statements at http://fittedin.org/fittedin/?p=751 and The Rights of the Forgotten Victims – Undue Leniency at http://fittedin.org/fittedin/?p=753). Why not? Yusef Abdullahi and Ronnie Actie died without even reaching 50, deprived of after-care that may have prolonged and improved the quality of their lives (see A Lack of Care at http://fittedin.org/fittedin/?p=709).

All victims are equal, but it seems that some are more equal than others.