Ludicrous

When sentencing the real murderer of Lynette White to life imprisonment in July 2003, Mr Justice (Sir John) Royce told Jeffrey Gafoor: “You allowed innocent men to go to prison for a crime that you knew you had committed.”

In October 2005 Royce gave his reasons for imposing the thirteen year tariff – the minimum that Gafoor must serve before he becomes eligible for release on parole – that included the four months that he served on remand before pleading guilty – although he stressed that it didn’t mean that Gafoor would be released that soon.

Nevertheless it was significantly less than the tariffs imposed on two of the entirely innocent Cardiff Three which were between fourteen and eighteen years.

Constraints

Royce believed that he was only allowed to add one third of his starting point (fifteen years) for aggravating circumstances. In this case they were the brutality of the crime and the fact that he had allowed innocent people to be convicted for his crime.

Royce added four years and six months for that. That is bizarre. Despite it being a particularly brutal crime and Gafoor allowing innocent men to suffer, Royce did not impose the maximum for aggravating circumstances. Why not?

He then gave Gafoor credit for an early guilty plea (he has to allow one sixth for that) and also for assisting the police with their current investigation into what went wrong. He deducted three years and six months for mitigation and because Gafoor was caught in 2003 Royce had to apply the law as it was then, which he thought meant that he had to add the amount to twelve years – the standard tariff at that time¹.

Consequently, Gafoor – the real murderer – received a significantly lower tariff than the innocent people he allowed to go to jail. The Cardiff Five served a total of sixteen years hard time in prison. There is a real possibility that the real murderer will serve less time in prison than the innocent men his silence allowed to be convicted. He becomes eligible to apply for parole in 2016.

Wrong

This is obscene and it sends out a message to killers that it is far better for them to allow the innocent to be convicted and do nothing than take responsibility for their crime. Previously, tariffs were determined by the Home Secretary, but after a challenge to the European Court of Human Rights, the court in Strasbourg ruled that the law had to be changed.

Ironically, a decision that gave the powers to set tariffs to judges deprived them of the very discretion they required to deliver justice based on the particular facts of individual cases. Mr Justice Royce found his hands firmly tied when he came to impose the tariff on Gafoor, or believed that they were. The law resulted in serious aggravating circumstances only outweighing comparatively trivial mitigating circumstances by just a year.

Favour

Meanwhile, the system is weighted further in Gafoor’s favour, as he can express remorse, attend the relevant courses and even use the fact that he assisted the inquiry into what went wrong in the original inquiry to support his parole application.

He can point to the fact that in almost eleven years before his arrest on suspicion of the murder of Lynette White he had not come to the attention of police. His only conviction was an assault on a colleague at work in 1992, which resulted in a non-custodial sentence.

An Insult

If Jeffrey Gafoor serves less time in prison than the innocent men he left to rot for his crime, it will be an insult to every concept of justice. It may be too late for the Cardiff Five, but there will be other cases of vindication where the same issues arise.

It is not too late to ensure that judges have the unfettered discretion to set appropriate tariffs in such cases that fit the individual circumstances of those cases. Perhaps it can’t help the Cardiff Five, but justice must surely reflect society’s disgust at criminals who not only commit terrible crimes but allow innocent people to pay the price of their crimes as well.

Anything less disgraces the very name of justice.

Origins

The Crown Prosecution Service (CPS) is over a quarter of a century old. It was established in 1986 by the Prosecution of Offences Act (1985), but why? Previously, the police were responsible not only for arresting suspects, but deciding whether they should be charged and prosecuted as well. It became clear that this was not an efficient system as inappropriate cases were prosecuted and occasionally cases that should have been prosecuted were not. An independent prosecuting authority was needed, but why then?

In part the answer lies in an egregious, but strangely neglected miscarriage of justice – a case that seemingly had it all. It was a nasty murder that involved a botched investigation by police and pathologists, shameful bullying of juvenile or otherwise vulnerable suspects, an intransigent criminal justice system and ultimate vindication of the wrongfully condemned. It was a case where tunnel vision overwhelmed the evidence-led approach, resulting in an egregious miscarriage of justice.

An Egregious Miscarriage of Justice

The Catford Three (Colin Lattimore, Ronald Leighton and Ahmet Salih) were wrongly convicted of the murder of mixed-race transvestite Maxwell Confait in November 1972. Eight months later their first appeal was rejected along with their claims of police brutality. A year later a change in government resulted in the convictions being referred back to the Court of Appeal.

By this time the scientific evidence – time of death – had collapsed. Professor Donald Teare put the time of death as significantly earlier, insisting that it must have been between 6.30-10.30. His distinguished colleague Professor Keith Simpson agreed. They would later be proved to be wrong by several hours, but that was no consolation to the police or prosecutor as their expert Professor James Cameron was even further out.

At the trial Cameron changed his time of death to possibly being as late as 1.00 a.m. – just 21 minutes before the fire was reported. This change of timing mangled the alibis of the three defendants who had prepared their defences for the earlier time of death that the police doctor and Cameron had previously said. That undermined the strength of alibis, especially Lattimore, who had a good alibi by ambush.

The retraction of their confessions counted for nought as well. They had been secured without a solicitor or even an appropriate adult being present. In 1975 the Court of Appeal quashed the convictions. Headed by Lord Justice (Sir Leslie) Scarman as he then was, the appeal judges criticised the policeʼs investigation and noted that the lack of injuries indicating a struggle suggested that Confait knew his killer.

Enquiries

Scarman took the rare step of declaring Lattimore, Leighton and Salih innocent. That prompted Roy Jenkins to re-open the inquiry, but Peter Fryer, who later became Assistant Chief Constable of West Mercia Police, failed to solve it. A full enquiry of the policing, especially regarding the effectiveness of the Judgeʼs Rules in the treatment of children and the vulnerable (then termed educationally sub-normal) was also ordered.

It was chaired by Mr Justice (Sir Henry) Fisher, who demanded and got the power to apportion guilt on the balance of probabilities if he wanted to – an outrageous concession that should never have been agreed to. Fisher made recommendations to the Judgeʼs Rules, but declared two of the Catford Three guilty.

He avoided libel proceedings as the report was returned to Parliament, which made it immune . It should not have been. Fisherʼs insistence on being allowed to declare people probably guilty when they were not should have had personal consequences, especially as the person responsible was a judge who should have known better – far better.

Fisherʼs serious error resulted in the Royal Commission of Criminal Procedure (1979-81). During that Commissionʼs investigation evidence emerged not only of the innocence of the Catford Three, but of who the real perpetrator was. Nevertheless, it was one that Fisher refused to apologise even when requested to by then Attorney General Sir Michael Havers.

Vindicated

That Royal Commission produced important legislation – the Police and Criminal Evidence Act (PACE) in 1984 and the Prosecution of Offences Act a year later. PACE became operational in 1986 and the Crown Prosecution Service was established that year as well. The CPS in particular would prove to be a terrible disappointment on many levels.

It also ended any doubt about the innocence or guilt of the Catford Three as it became an early vindication case – a miscarriage of justice that was resolved either by the conviction of the real killer, or if deceased by acceptance by the criminal justice system that the real perpetrator had been identified. That is what happened in this case.

The Royal Commissionʼs investigation established that Confait had in fact been murdered at least two days before the fire of April 22^nd 1972 which alerted police to Confaitʼs death. Professors Alan Usher and Keith Mant showed that through the discolouration of organs, which begs the question of how Cameron, Teare and Simpson – all distinguished forensic pathologists – missed something as obvious as that.

Detective Chief Superintendent E J George and Detective Chief Inspector Eddie Ellison identified not only the real murderer, but an accomplice and witness to the murder as well. They had interviewed Paul Pooley who admitted being in Confaitʼs Doggett Road abode when Douglas Franklin murdered the unfortunate Confait. Franklin, knowing the game was up, committed suicide shortly after being interviewed.

In February 1980 they presented their report to the Director of Public Prosecutions (DPP) Sir Michael Havers. It destroyed the case against Lattimore, Leighton and Salih once and for all. Havers made a statement to Parliament declaring the three innocent in August 1980. They had been vindicated, but it would take more than five years for the legislation born of that tragedy to result in the ʻindependentʼ prosecuting body, the CPS, opening for business.