Anniversary

Thirteen years ago today Jeffrey Gafoor made history. Gafoor pleaded guilty to the murder of Lynette White. She was the victim of what was then (February 14th 1988) the most brutal murder of its type in Welsh history. Faced with overwhelming evidence Gafoor admitted that he had murdered Lynette. He had provided samples for DNA testing before attempting to take his own life in February 2003. Police officers from the Lynette White Inquiry Phase II saved his life.

Phase II was one of the best investigations ever. Led by Detective Chief Superintendent Kevin O’Neill, these officers and the forensic scientists, did a fantastic job. They knew that finding the real killer would come at a huge price to the force. No British police force had ever resolved a miscarriage of justice by convicting the real killer in the DNA age. Any force that did so knew that it would unleash a can of worms, the like of which British policing had never faced before. But still, they investigated doggedly and continued until they made history by bringing Gafoor to justice.

A Colossal Error

And then that storm was unleashed. Phase III investigated what went wrong – who was responsible for one of the most notorious miscarriages of justice ever. Thirty-four people were arrested and interviewed under caution on suspicion of offences including conspiring to pervert the course of justice and perjury. Twenty of them were police officers and 13 were told that they would face trial, along with two civilian witnesses.

But before they faced trial three of the alleged eye-witnesses were tried for perjury and conspiring to pervert the course of justice. Mr Justice (Sir David) Maddison ruled that they could not claim duress, as the law demanded that they must retract immediately, but to whom – police officers, the courts? Who? How could they be expected the courts or police after what they had gone through?

Mark Grommek, Angela Psaila and Learnne Vilday (the New Cardiff Three) were convicted – rightly as the law said, but wrongly according to justice and conscience. The court accepted that they had told the lies they were forced to tell and then they were prosecuted for telling them. They were each sentenced to 18 months in prison. This was and remains a huge injustice – the law could not have acted more inappropriately, but worse would soon follow.

Travesty

With 13 police officers and two witnesses due to face trial it was decided that eight former officers, including Graham Mouncher and Richard Powell and the witnesses Ian Massey and Violet Perriam would face trial first. The trial began in 2011. I was due to be a witness against Massey. Nicholas Dean QC and his prosecution team ensured that I would miss virtually all the trial for no good reason – actually there was a very good reason.

We were not meant to see what was unfolding. It would take a very long time to unravel, but unravel it would. The trial collapsed on largely spurious grounds. Disclosure was not what it should have been – that is unarguable, but whose fault is that? The straw that broke the camel’s back was the failure to disclose some documents – copies actually. The originals had been retained, and copies were taken.

The copies were meaningless. It was believed that they had been destroyed – evidence to that effect was given, but it was not true. A month after the sensational collapse of the trial the supposedly destroyed documents were discovered in the very boxes that they had been sent to police by the IPCC.

Unlawful

I had been kept out of the trial until it was far too late – we believe that was their intention all along. South Wales Police chose to cooperate with HMCPSI and the IPCC, both of whom were investigating aspects of the collapse of the trial. The terms of reference established that neither process was worth cooperating with as they would not establish why a notorious miscarriage of justice had been allowed to occur.

I chose not to cooperate and demanded the return of my work product, which was mine alone, as was the copyright on it. The Professional Standards Department unlawfully seized my work and distributed to others against my wishes in flagrant disregard of my rights and copyright.

The justification supplied a year late did not apply to me. Naturally the IPCC – itself an interested party and therefore not an impartial arbiter upheld the ludicrous justification – one that applied to criminal suspects not cooperating witnesses. Both HMCPSI and the IPCC failed miserably to explain why this appalling miscarriage of justice had occurred – inevitable really – as neither was concerned with that and nor was the Home Secretary, Theresa May. Her concern was to avoid a public inquiry.

Squaring the Circle

As early as the first week of the 2011 Police Corruption Trial it became obvious that the prosecution was lacklustre – notwithstanding that the prosecution team could talk a good talk. The defence case was a tried and tested method in such cases – deny that there had ever been a miscarriage of justice. The Cardiff Five were guilty, they claimed. But what about the DNA? What about Gafoor’s guilty plea? What about his insistence that he had acted alone?

Simple. None of that mattered. All that counted were his inconsistent accounts. He could only remember inflicting ten or twelve stab wounds and not the throat ones. So what? Well that meant it was possible that there was more than one attack. “Technically”, Angela Gallup said – the scientific equivalent of ‘and I can’t rule out the possibility that pigs could fly either!’

There was forensic pathology evidence and blood distribution pattern evidence that had an important story to tell. Lynette’s murder was never consistent with five killers and two witnesses charging around the crime-scene in darkness without leaving any trace of themselves or interfering with any of the evidence in the flat.

It simply flew in the face of any notion of logic.

The Final Insults

It served well in 2011 – so well that it was trotted out again in the compensation case in 2015. And as in 2015 the witnesses that could demolish this outrageous hypothesis were never called. We will be publishing Trials and Tribulations – Innocence Matters? soon. The aim is to reassert the truth – the Cardiff Five are, as they always were, totally innocent of any involvement in the murder of Lynette White, even though it is too late to matter to Yusef Abdullahi and Ronnie Actie.

Meanwhile, Gafoor had received a very lenient tariff in 2005 – just 12 years and 8 months, 13 years in reality once remand was taken into account. Consequently, Gafoor is now eligible to apply for release on parole. We will be publishing Bad Form – How Tariffs Protect the Guilty and Punish the Innocent soon to illustrate the grave flaws with the tariff system – one that sees no problem with treating the truly guilty more leniently than the innocent for the same crime. As Lloyd Paris – Tony’s brother – said, “Things are back to front!”

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.

Downfall

The downfall of British judge Constance Briscoe has been long overdue. She claimed to have hauled herself up from adversity to sit on the Bench – a role model for aspiring black lawyers, but was she ever the inspiration she claimed to be? The 57-year-old barrister and part time judge was no stranger to controversy, having claimed to have triumphed over adversity in childhood and successfully sued her mother for libel.

She now contemplates her spectacular fall from grace from a prison cell – sentenced to 16 months for intending to pervert the course of justice. She deceived police investigating the offences committed by former Minister Chris Huhne and his estranged wife, the economist wife Vicky Pryce.

Briscoe’s recent crimes have been well reported, but should it have ever come to this? Fifteen years ago the Bar Council failed to investigate whether she was fit to practice over several very serious allegations, including forging signatures. The astonishing thing was the complainant was Briscoe’s mother whom she sued for libel. Her mother’s allegations are now being investigated.

An Ass

“Perjury strikes at the heart of the criminal justice system”, Mr Justice (Sir David) Maddison said when he jailed three witnesses who had lied in a notorious miscarriage of justice – the Lynette White Inquiry. Unlike Briscoe, Mark Grommek, Angela Psaila and Learnne Vilday had an excuse – a good one. They had been browbeaten into telling the lies the police demanded of them. Unlike Briscoe the intent to pervert the course of justice was not their’s, but they alone paid the price.

They had no real choice, but to tell the lies they told and once they had told the first batch, they were boxed in. They had little choice but to stick to a monstrous script  – one that they were later sent to jail for sticking to. Unlike Briscoe they had mitigation – plenty of it. The judge, Crown Prosecution Service (CPS) and even the police that investigated their perjury admitted that they had been bullied. They were subjected to conduct that was in Maddison’s words: “unacceptable in a civilised society”. They were denied a defence by an ass of a law that found this conduct unacceptable, but did not meet the legal standard of duress.

They had perverted the course of justice, but unlike Briscoe only because justice had been so perverted as to force them to commit those crimes against justice. They were then punished for committing the very crimes that they were given no choice but to commit. The law that resulted in their convictions is archaic and unjust. The lawyers and functionaries implementing it must know that In their situation virtually all of us would have done as they did, but it matters not a whit to the law and those charged to uphold it. Where was that same law and its enforcers when these victims of a grave injustice needed protection and support?

Freedom of  Choice

Unlike them, Constance Briscoe freely chose her path to disgrace, but she was treated more leniently than they were. The New Cardiff Three were sent to jail for 18 months – two more than Briscoe who had no excuse. Briscoe was intended to be the star witness against Huhne, but her friendship with Pryce and role in her friend’s revenge almost caused the trial to collapse. Briscoe and Pryce and Huhne – all of whom had privileged lives – had no excuse. The New Cardiff Three really had rotten lives and were vulnerable to the abuse by the criminal justice system that overcame them partly because of the vulnerability to abuse those lives left them open to.

Briscoe claims she overcame serious adversity in her childhood – her family tell a different story. Years after the allegations of her being a fantasist and worse first surfaced, they are finally being investigated seriously. Briscoe may yet face further trials.

Unfit for Purpose

The CPS has had over a quarter of a century to overcome teething problems. But it remains unfit for purpose. It botched the prosecution of police officers over a notorious miscarriage of justice through utter incompetence. It refuses to take responsibility for an appalling job throughout the notorious Lynette White Inquiry – far from the only botched prosecution it has been responsible for.

It prosecuted innocent men in spite of its Code for Crown Prosecutors, even having the chutzpah to justify the decision to prosecute by having secured convictions – now recognised as it should have been back then as one of Britain’s most notorious miscarriages of justice. It ignored the law when failing to appeal the outrageous leniency of the real killer’s tariff. Its performance in that case – and others too – has been a litany of gross failure.

It appointed a Disclosure Officer in a case where it knew that the defendants – former police officers – would seek to exploit disclosure obligations to undermine the trial. Despite this it fails to explain how the trial could have collapsed over disclosure if that lawyer had done his job. It refuses to account for the millions of public resources it has shamefully wasted, but it can prosecute people it accepts were bullied by those police officers and punish them alone for all the flaws its rotten performance in this case exemplifies.

The New Cardiff Three (Mark Grommek, Angela Psaila and Learnne Vilday) perjured themselves and perverted the course of justice, but unlike Briscoe they had no choice and the trial of those accused of forcing them to lie collapsed on an absurd technicality, meaning they evaded the consequences of their actions and uncivilised conduct. Our concern remains the conduct of the CPS. Judges being jailed for perjury is a rare occurrence – thankfully. However, justice must be dispensed evenly. In this case it has been, but what about all the others?

Embittered but Credible

Huhne, admittedly an embittered and ordinarily discredited source, raises important questions about the CPS. “Constance Briscoe has been revealed as a compulsive and self-publicising fantasist”, Huhne said after her conviction. “British justice is likely to be a lot fairer with Briscoe behind bars. If she can make up the witness statement used as the key evidence against me, she is clearly capable of hiding evidence she should have disclosed to the defence in the many cases that she prosecuted for the Crown Prosecution Service. Aggrieved defendants will now seek a CPS review”.

The Bar Council dismissed previous complaints against Briscoe as a family dispute. The judiciary also failed to rein in a judge, now exposed as rogue. The CPS has no plans to investigate cases handled by Briscoe as judge or barrister. Such decisions bring it into further disrepute. Surely now there can be no confidence in her conduct on the Bench and indeed as a barrister. And with the refusal of the CPS to investigate here cases, can there be any confidence in it?

The CPS will not investigate whether she has contributed to miscarriages of justice during her career at the Bar and on the Bench, which lasted almost three decades. The CPS has issued a statement: “We have no plans to review cases involving Constance Briscoe as counsel”. Why not? And why does the criminal justice system allow the CPS to betray justice yet again?

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.

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.

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?

Downfall

The downfall of British judge Constance Briscoe has been long overdue. Briscoe claimed to have hauled herself up from adversity to sit on the Bench – a role model for aspiring black lawyers? She now contemplates her spectacular fall from grace from a prison cell – sentenced to 16 months for her part in the perversion of justice committed by former Minister Chris Huhne and former wife, the economist wife Vicky Pryce.

Briscoe crimes have been well reported, but should it have ever come to this. Fifteen years ago the Bar Council failed to investigate whether she was fit to practice over several very serious allegations, including forging signatures. The astonishing thing was the complainant was Briscoe’s mother whom she sued for libel. Her allegations are now being investigated.

An Ass

“Perjury strikes at the heart of the criminal justice system”, Mr Justice (Sir David) Maddison said when he jailed three witnesses who had lied in a notorious miscarriage of justice. Unlike Briscoe, Mark Grommek, Angela Psaila and Learnne Vilday had an excuse – a good one. They had browbeaten into telling the lies the police demanded of them.

Unlike Briscoe they had no real choice. Unlike Briscoe they had mitigation. The judge, Crown Prosecution Service (CPS) and even the police that investigated their perjury admitted that they had been bullied. They were subjected to conduct that was in Maddison’s words: “unacceptable in a civilised society”. They were denied a defence by an ass of a law that found this conduct unacceptable, but not duress. They perverted the course of justice, but unlike Briscoe only because justice had been perverted to force them to commit crimes against justice. The law that forced their convictions is archaic and unjust. In their situation virtually all of us would have done as they did, but unlike them Constance Briscoe freely chose her path

The New Cardiff Three were sent to jail for 18 months – two more than Briscoe who had no excuse and a year more than Huhne and Pryce – all of whom had privileged lives and no excuse. The New Cardiff Three really had rotten lives and were vulnerable to the abuse by the criminal justice system that overcame them. Briscoe claims she overcame serious adversity in her childhood – her family tell a different story. Years after the allegations of her being a fantasist and worse first surfaced, they are finally being investigated seriously. Briscoe may yet face further trials.

Unfit for Purpose

The CPS has had over a quarter of a century to overcome teething problems. But it remains unfit for purpose. It botched the prosecution of police officers over a notorious miscarriage of justice through utter incompetence. It refuses to take responsibility for an appalling job throughout the notorious Lynette White Inquiry – far from the only botched prosecution it has been responsible for. The sorry tale of that investigation and  trial is detailed in Satish Sekar’s book (see below).

It prosecuted innocent men in spite of its Code for Crown Prosecutors, even having the chutzpah to justify the decision to prosecute by having secured convictions – now recognised as it should have been back then as one of Britain’s most notorious miscarriages of justice. It ignored the law when failing to appeal the outrageous leniency of the real killer’s tariff. Its performance in that case – and others too – has been a litany of gross failure.

It failed to appoint a Disclosure Officer in a case where it knew that the defendants – former police officers would seek to exploit disclosure obligations to undermine the trial. It refuses to account for the millions of public resources it has shamefully wasted, but it can prosecute people it accepts were bullied by those police officers and punish them alone for all the flaws its rotten performance in this case exemplifies.

The New Cardiff Three perjured themselves and perverted the course of justice, but unlike Briscoe they had no choice and the trial of those accused of forcing them to lie collapsed on an absurd technicality. Our concern is the conduct of the CPS. Judges being jailed for perjury is a rare occurrence – thankfully. Surely now there can be no confidence in her conduct on the Bench and indeed as a barrister.

However, the CPS – venal as ever – will not investigate whether she has contributed to miscarriages of justice during her career at the Bar and on the Bench, which lasted almost three decades. The CPS has issued a statement: “We have no plans to review cases involving Constance Briscoe as counsel”. Why not?

Damage Limitation

The Police Corruption Trial of the Century ended in farce on December 1^st 2011 – a nine year investigative process had resulted in convictions of three vulnerable witnesses and no others. The Crown Prosecution Service (CPS), prosecutor Nicholas Dean QC and defence lawyers – police even – all accepted that they had been forced to lie (see Duress and The Lawʼs An Ass). Nevertheless, the law did not recognise the duress that they had suffered.

Mark Grommek, Angela Psaila and Learnne Vilday therefore had no choice but to plead guilty to perjuring themselves.¹ Having done so, they were treated leniently due to the bullying they had endured by police officers who had in the words of the judge used methods that were “unacceptable in a civilised society”.

The New Cardiff Three were sentenced to 18 months imprisonment. By March 2009 the CPS announced that 13 police officers (some of whom had retired) had been charged with a variety of offences including conspiracy to pervert the course of justice and perjury. Two witnesses also faced those charges. They had no intention of going down meekly. However, this would prove to be a poorly prepared prosecution marred by penny-pinching foolishness that would ultimately cost the public millions more and deprive us all of the accountability and answers we have waited years to discover.

The Judge

Despite the seriousness of the case it was destined to be heard in Swansea before Mr Justice (Sir Nigel) Sweeney. The judge had been involved in prosecuting a notorious crime – the Chillenden attack on the Russell family which left Lin Russell and her daughter Megan and dog Lucy dead and Josie Russell fighting for her life.

Sweeney knew that the Crownʼs pathologist – albeit subsequently discredited – suggested that there had been significant contact between the killer and a bootlace used to strangle the unfortunate Megan. There was no disputing that the contact was substantial and that the killerʼs DNA would have been on the lace, but Sweeney knew that Michael Stoneʼs DNA was not on that boot-lace. This was strong evidence of innocence, but a fanciful explanation was advanced and Stoneʼs defence accepted the Crownʼs willingness to stipulate that Stoneʼs DNA and fingerprints had not been discovered at the crime-scene.

The Crown claimed that Stone – a habitual drugs-user – had obtained the lace from another user and had used it to restrain Megan. Somehow despite putting substantial pressure through the lace onto his fingers he had not deposited his own DNA while both Meganʼs and the unknown drug-user he had allegedly obtained the lace from remained on it, or at least alleles (bands in the DNA testing system used did).

It was obvious that the far more probable explanation of the unidentified male DNA at the relevant points on the lace was that it had been shed by the killer. It was yet another example of a convenient interpretation of the DNA results – one that stretched credibility and most probably contributed to an egregious miscarriage of justice. Sweeney was either aware of the fanciful nature of the explanation that he relied on, or he should have been.

Precedent Ignored

Stone was convicted again in September 2001 and subsequently lost an appeal. An application to the Criminal Cases Review Commission (CCRC) failed to present the compelling scientific evidence of innocence. He remains in prison for very serious crimes that he did not commit in circumstances where strong evidence supporting his claims of innocence has never been heard by any court or even the CCRC.

By this time a very significant miscarriage of justice – a Dutch vindication case had thoroughly unravelled. The Schiedammer Parkmoord has been covered in considerable detail by us (see the various articles on that case). Astonishingly the significance and potential of that case remains largely ignored by supporters of Stone, lawyers and media all professing to champion his innocence even though the methods used in that case to prove the innocence of Kees Borsboom are plainly apt in Stoneʼs case.

Shamefully, the scope to prove him innocent remains ignored while an almost certainly innocent man languishes in prison while an expert who has first hand experience of the issues involved is denied the opportunity to test his claims of innocence. Sweeneyʼs role in securing this miscarriage of justice has never been subjected to public scrutiny. Over a decade later no media apart from us even mentions it, let alone investigates it.

Damage Limitation

The Police Corruption Trial of the Century ended in farce on December 1^st 2011 – a nine year investigative process had resulted in convictions of three vulnerable witnesses and no others. The Crown Prosecution Service (CPS), prosecutor Nicholas Dean QC and defence lawyers – police even – all accepted that they had been forced to lie (see Duress and The Lawʼs An Ass). Nevertheless, the law did not recognise the duress that they had suffered.

Mark Grommek, Angela Psaila and Learnne Vilday therefore had no choice but to plead guilty to perjuring themselves.¹ Having done so, they were treated leniently due to the bullying they had endured by police officers who had in the words of the judge used methods that were “unacceptable in a civilised society”.

The New Cardiff Three were sentenced to 18 months imprisonment. By March 2009 the CPS announced that 13 police officers (some of whom had retired) had been charged with a variety of offences including conspiracy to pervert the course of justice and perjury. Two witnesses also faced those charges. They had no intention of going down meekly. However, this would prove to be a poorly prepared prosecution marred by penny-pinching foolishness that would ultimately cost the public millions more and deprive us all of the accountability and answers we have waited years to discover.

The Judge

Despite the seriousness of the case it was destined to be heard in Swansea before Mr Justice (Sir Nigel) Sweeney. The judge had been involved in prosecuting a notorious crime – the Chillenden attack on the Russell family which left Lin Russell and her daughter Megan and dog Lucy dead and Josie Russell fighting for her life.

Sweeney knew that the Crownʼs pathologist – albeit subsequently discredited – suggested that there had been significant contact between the killer and a bootlace used to strangle the unfortunate Megan. There was no disputing that the contact was substantial and that the killerʼs DNA would have been on the lace, but Sweeney knew that Michael Stoneʼs DNA was not on that boot-lace. This was strong evidence of innocence, but a fanciful explanation was advanced and Stoneʼs defence accepted the Crownʼs willingness to stipulate that Stoneʼs DNA and fingerprints had not been discovered at the crime-scene.

The Crown claimed that Stone – a habitual drugs-user – had obtained the lace from another user and had used it to restrain Megan. Somehow despite putting substantial pressure through the lace onto his fingers he had not deposited his own DNA while both Meganʼs and the unknown drug-user he had allegedly obtained the lace from remained on it, or at least alleles (bands in the DNA testing system used did).

It was obvious that the far more probable explanation of the unidentified male DNA at the relevant points on the lace was that it had been shed by the killer. It was yet another example of a convenient interpretation of the DNA results – one that stretched credibility and most probably contributed to an egregious miscarriage of justice. Sweeney was either aware of the fanciful nature of the explanation that he relied on, or he should have been.

Precedent Ignored

Stone was convicted again in September 2001 and subsequently lost an appeal. An application to the Criminal Cases Review Commission (CCRC) failed to present the compelling scientific evidence of innocence. He remains in prison for very serious crimes that he did not commit in circumstances where strong evidence supporting his claims of innocence has never been heard by any court or even the CCRC.

By this time a very significant miscarriage of justice – a Dutch vindication case had thoroughly unravelled. The Schiedammer Parkmoord has been covered in considerable detail by us (see the various articles on that case). Astonishingly the significance and potential of that case remains largely ignored by supporters of Stone, lawyers and media all professing to champion his innocence even though the methods used in that case to prove the innocence of Kees Borsboom are plainly apt in Stoneʼs case.

Shamefully, the scope to prove him innocent remains ignored while an almost certainly innocent man languishes in prison while an expert who has first hand experience of the issues involved is denied the opportunity to test his claims of innocence. Sweeneyʼs role in securing this miscarriage of justice has never been subjected to public scrutiny. Over a decade later no media apart from us even mentions it, let alone investigates it.

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