Disbelief

The failure to investigate, let alone prosecute in miscarriage of justice cases is striking. Mervyn ‘Tex’ Ritter expressed disbelief that appeal judges believed him after an unsuccessful appeal by the Bridgewater Four. Despite their exoneration in 1997 there was no prosecution of Ritter or police officers despite compelling Esda (Electrostatic depression analysis) evidence.

The late Gary Mills and Tony Poole’s case is even more disturbing. Despite clear findings of wrong-doing by police officers by two sets of appeal judges, a Lord Chief Justice, a libel trial jury and the Criminal Cases Review Commission (CCRC) justice has been denied.

Serious allegations of malpractice including perjury and conspiracy to pervert the course of justice have never been adequately investigated by the Police Complaints Authority (PCA) or the Independent Police Complaints Commission (IPCC), let alone considered by the Crown Prosecution Service (CPS). Despite a witness being allowed to lie in his statements to police Paul White has never been investigated for perjury, let alone brought to trial.

Grudging

However, witnesses who claim police malpractice can find themselves charged and condemned. Almost 20 years ago Kevin Sarbutts was jailed for three years for perjury. In 1990 he admitted lying at the trial and second trial of Alban Turner, which resulted in Turner’s wrongful conviction.

Turner was freed on appeal in 1990, but grudgingly by the Court of Appeal, which referred the papers on Sarbutts to the Director of Public Prosecutions. Lord Lane said that it was ʻequally wickedʼ to lie to jail an innocent man or to free a guilty man.

Sarbuttsʼ trial dealt with his allegations of police brutality and misconduct – no charges were brought in relation to Turner. With echoes of the Cardiff Five witnesses’ trial, Sarbutts was treated leniently by His Honour Judge Brian Smedley after a request from the jury for that.

Vindication

Even vindication doesn’t result in investigations, let alone prosecutions. Over a decade after the late Phillip Skipper stood trial for the murder of his estranged wife Karen – a crime committed by John Pope – a witness came forward with a cock and bull story. Pauline Horton claimed that she saw Phillip follow his wife on that fatal night just after she left to walk the dogs.

It allegedly broke Skipper’s alibi and saw him wrongly accused by Pope’s defence at his 2010 appeal and in his subsequent retrial. Her own evidence established that she had a restricted view and could only have seen them in darkness for seconds. There has been no investigation of her claims.

Striking

“Perjury strikes at the heart of the criminal justice system”, said Mr Justice (Sir David) Maddison, when he jailed Learnne Vilday, Angela Psaila and Mark Grommek for 18 months in 2008. Vilday et al had been subjected to conduct that was “unacceptable in a civilised society,” Maddison said.

Police faced trial over it, but the trial collapsed in farcical circumstances in December 2011. Consequently, the three core-witnesses remain the only people convicted of helping to cause one of Britain’s most notorious miscarriages of justice.

Lynette White was brutally murdered in 1988 and five innocent men served a total of 16 years in jail for it. It remains the only miscarriage of justice case where witnesses were convicted of lying about victims of a miscarriage of justice since the notorious Ged Corley case.

Perjury Under Duress

Mark Grommek, Learnne Vilday and Angela Psaila were sentenced to eighteen months imprisonment for perjury on December 19^th. They are the first witnesses to be convicted of perjury in a miscarriage of justice case, where even the prosecution accepted that their allegations of police malpractice, which included violence and threats of wrongful imprisonment, were true.

The case of the Cardiff Five (Yusef Abdullahi, John and Ronnie Actie, Stephen Miller and Tony Paris) was the first miscarriage of justice n the DNA age in Britain to be resolved by the conviction of the real murderer, Jeffrey Gafoor. The four alleged eyewitnesses – Paul Atkins was deemed unfit to stand trial – were the first to be charged with any offence in that case since Gafoorʼs conviction on July 4^th 2003.

Grommek Vilday and Psaila pleaded guilty to perjury in October. There is no doubt that those witnesses perjured themselves, as they have admitted it and the conviction of Gafoor proved it, but such cases are rare and this is unique in terms of it being accepted that they were mistreated by police.

Grommek gave evidence that he was subjected to threats of violence by a then Detective Inspector Richard Powell, before he gave accounts that falsely implicated Abdullahi and Ronnie Actie,. His claims of police malpractice were accepted by the prosecution – no police officers had been charged over this case, although several remain on bail.

The conviction of Grommek, Psaila and Vilday is controversial. Will they be only witnesses to face trial over a miscarriage of justice case in such circumstances? Vilday was also put under intolerable pressure as was Psaila who believed that her blood had been found in the room when Lynette was murdered until told differently in 2004. She reacted with shock at the news.

Discredited Predecessor

There is no shortage of miscarriage of justice cases, but none of the major cases have resulted in such an investigation let alone convictions. The closest is the case of former Greater Manchester police officer Ged Corley, who was accused of a series of armed robberies. After it became clear that he was on duty at the time some offences occurred, several of Manchesterʼs criminal fraternity were allowed to change their accounts and accuse him of master-minding the robberies instead.

After his convictions were quashed in March 1990 an investigation resulted in perjury convictions, but of the armed robbers who had framed him. The only convictions that were obtained of police officers in that case were because they pleaded guilty to lesser offences, but not perjury or conspiracy to pervert the course of justice. That came from one of the biggest investigations that the Police Complaints Authority (PCA), the predecessor of the equally flawed Independent Police Complaints Commission (IPCC) had ever conducted.

Context

Less than two weeks after Corleyʼs convictions were quashed, the Court of Appeal, headed by the discredited then Lord Chief Justice, Lord Lane, freed Alban Turner, but in a manner that left a bad taste. It was clear that crucial witness Kevin Sarbutts had lied. The crucial issues were what lies had he told and why had he told them.

Sarbuttsʼ retraction was referred to the now abolished PCA. The investigation was huge and utterly flawed by design. It did not investigate whether Sarbutts had lied about Turner – just his allegations of police malpractice. Turnerʼs guilt or innocence was crucial, but it was peripheral at best. As such the context was missed and the investigation lacked a crucial focus.

Sarbutts was convicted of perjury in 1994 and sentenced to three years imprisonment after the jury asked for leniency. His claims that he had lied to frame an innocent man were not part of the case against him. The PCA has been replaced, but is the IPCC adequate, especially in dealing with perjury in miscarriage of justice cases?

Vindicated

The Cardiff Five (Yusef Abdullahi, John Actie, Ronnie Actie, Stephen Miller and Tony Paris) had been vindicated – proved innocent by the conviction of the real killer. Bizarrely, the CPS and Nicholas Dean QC failed to appreciate the lessons of previous prosecutions of police officers over miscarriages of justice.

In the 1990s – a golden decade of miscarriage of justice awareness – a worrying trend emerged. Convictions fell like flies, or seemingly so. Among them were some of Britainʼs most notorious miscarriages of justice. Beginning with the quashing of the convictions of the Guildford Four (Patrick Armstrong, Gerry Conlon, Paul Hill and Carole Richardson) in October 1989 others soon followed. A whole squad – the notorious West Midlands Serious Crimes Squad – was disbanded and numerous convictions were quashed. But despite this there were no successful prosecutions of police officers over those cases.

Watching the Detectives

Former police officer Ged Corley was convicted of being the mastermind of a series of armed robberies. His convictions, based on the word armed robbers turned super-grasses, were quashed in 1990. The Police Complaints Authority (PCA), discredited predecessor of the Independent Police Complaints Commission (IPCC), investigated a bizarre complaint where the de facto head of the inquiry that convicted Corley, Peter Jackson complained about his own investigation.

Alban Turnerʼs conviction for the murder of Notting Hill Carnival coke-can seller Michael Galvin was quashed in March 1990 as well. His conviction depended on Kevin Sarbutts, whose allegations against the police resulted in a perjury conviction. His allegations against Turner were not investigated. They were to all intents and purposes ignored despite serious discrepancies. That would prove to be far from unusual.

A Gross Pattern of Incompetence

The convictions of the late Paul Darvell and his brother Wayne for the murder of Swansea sex-shop manageress Sandra Phillips were quashed in 1992 in strong terms by three judges headed by the then Lord Chief Justice, Lord (Peter) Taylor. Three officers were acquitted in 1994 despite proof that the original jury had been lied to. Allegedly contemporaneous notes had been written on notebooks issued two months later.

And 1991 saw the collapse of the case against the Tottenham Three (Mark Braithwaite, Engin Raghip and Winston Silcott). That resulted in police being prosecuted, but the previous errors were repeated. Jurors have to believe the original defendants were innocent or they wonʼt convict, especially if the prosecutions are lacklustre, which these were.

Egregious Injustices

These were far from the only miscarriages of justice to plague British justice at that time, but they had something in common – trials of police officers followed, as did acquittals in every case that was contested. Some like the Birmingham Six and Stefan Kiszko were as egregious injustices as could occur, yet despite charges being brought, the accused did not even face trial.

There was a lesson in these prosecutions, or rather there was for those willing to see. In all of the cases that reached trial, the accused police officers employed a simple and reprehensible strategy – a sadly effective one. They turned their trials into retrials of the wrongly convicted. Time after time the CPS failed to grasp the obvious lesson of these cases. Juries would not convict police officers over the miscarriage of justice cases without being convinced that the original defendants had been innocent.

Vindication

The trial of Mouncher et al offered new possibilities. Here was a case where there was no credible doubt about the innocence of the original defendants. They had been proved innocent. Jeffrey Gafoor had pleaded guilty and he was guilty. But the CPS did not have to rely on Gafoor – a man who had knowingly allowed innocent men to suffer wrongful imprisonment for his crime and who had benefited from his assistance to the Lynette White Inquiry Phase III investigation in the form of a reduction in the tariff he received.

An integrated approach to the crime-scene evidence, forensic pathology, blood distribution pattern and later DNA would prove consistent with only one interpretation. Lynette Whiteʼs horrific murder had not been witnessed by two or even four people forced to participate in it. There had not been five killers or even three. The evidence demonstrated unequivocally that there was only one killer – a man and his name is Jeffrey Gafoor. It proved that the Cardiff Five were, as they had always insisted, innocent. It had been proved beyond doubt.

Lessons

If the CPS and counsel it instructed had learned the lesson of all the previous failed prosecutions of police officers in the miscarriage of justice cases, they would have realised that their first and most important task was to convince the jury that there was no credible doubt that the Cardiff Five were innocent and that the evidence had established this fact many moons ago. Then and only then would a jury care.

They had this evidence available to them from a very credible witness that there was no doubt about their innocence, but the jury were denied his evidence. If the CPS and its counsel had done their jobs to the standard the public had a right to expect, the ground would have been cut from beneath the feet of the reprehensible tactic of accusing men who had been proved innocent before it was given the opportunity to sully justice further.

Sadly the CPS trod the discredited path yet again and wasted public resources botching yet another prosecution of police officers in circumstances where it was harder to lose than win, but they managed to snatch a pathetic defeat from the jaws of victory.

Duress – A Legal Quagmire
Mark Grommek, Angela Psaila and Learnne Vilday (the New Cardiff Three) were told that they had a responsibility to tell the truth and should have reported what had been done to them. The prosecutor, Nicholas Dean QC, said that they had time to tell before the committal hearing and trials, but who should they have told? Vilday had tried more than once to tell the truth. Each time she was brought back into line. Psaila tried as well and she too was brought back into line. Grommek stuck rigidly to the script, although he fought his corner on duress hardest of all. They plainly believed that they had no choice but to lie and Vilday at least had indeed tried to tell the truth as Dean and the CPS had demanded. It did her no good.

These witnesses were being looked after by police officers who had not been involved in the original inquiry. They also had access to court officials before giving evidence. According to their prosecutors they should have told the truth to either those police officers or the officials of the court. This took no account of the psychological trauma they had suffered and also the legal and political climate of the time.

What would have happened if they had done precisely what Dean demanded of them? An investigation would have followed, which would have been their word against the police they accused of bullying them without the certain knowledge we now have that they had indeed been lying about the guilt of the Cardiff Five. What was the likelihood of them being believed?

In March 1990 Alban Turner, wrongly convicted of murdering Michael Galvin at the 1987 Notting Hill Carnival was freed on appeal. The star witness Kevin Sarbutts had retracted, alleging serious police malpractice. The now defunct Police Complaints Authority (PCA) investigated those allegations. His lies against Turner, which he admitted to, were never investigated. Sarbutts was convicted by a jury that asked for him to be treated leniently. He was sentenced to three years in prison.

A Dangerous Precedent

If they had told the truth earlier they would almost certainly have shared the fate of Sarbutts. His complaint to the PCA was used to prosecute him for perjury, but not in relation to his self-confessed lies about Turner. He was prosecuted and convicted of perjury in 1994 for his claims of police malpractice. If the New Cardiff Three had told the truth between December 1988 and November 1990, they would in all probability have gone to jail then and for longer, but for what they said about the police – the very things Mr Justice Maddison’s court accepted were true.

Vilday and Psaila pleaded guilty when told they would be sentenced on one count rather than the three they were charged with. Grommek elected to be tried, pending a decision on whether duress could be a defence to perjury. Mr Justice Maddison eventually decided that duress was no defence to perjury, so Grommek changed his plea to guilty. He had been left with no choice, but he was left with the three counts. They were convicted due to the laws on duress to perjury charges and sentenced to 18 months imprisonment each, despite the judge branding police conduct to them as: “unacceptable in a civilised society”.

Another Miscarriage of Justice

They now want their convictions quashed and a public inquiry. But this requires a change in the law. If what happened to them does not count as duress, then the law is wrong. The unacceptable conduct resulted in statements containing a perjury warning, but it had the opposite effect to that intended by those who drafted that law. Instead of preventing perjury it led inexorably to the evidence they were forced to give. They had no realistic choice but to do as they did back then – perjure themselves.

20 years later they were prosecuted for doing what they were forced to. The criminal justice system accepts that they have now told the truth about what was done to them in 1988, but the law offers them no remedy, just a criminal conviction – the only people held legally accountable for the miscarriage of justice that befell the Cardiff Five.

On any normal definition of the term the New Cardiff Three are victims of a shameful miscarriage of justice – one that offers a stark warning of what will happen even if witnesses have compelling proof that they were forced into perjuring themselves. Meanwhile, the officers whose conduct was branded ‘unacceptable in a civilised society’ were told that they would face trial – a trial that would later collapse in farcical circumstances.

Continue to Exceptional Injustice P.5