Not Worthy

Neil Sayers’ case was one of those that were not deemed worthy of further investigation by the CCRC. The disgraced forensic pathologist Dr Michael Heath was the Crown’s expert against him. Despite their conclusions there are important causes for concern over Heath’s involvement in Sayers’ case that the Criminal Cases Review Commission (CCRC) did not consider in David Jessel’s review.

In April 1999 Sayers was convicted with Graham Wallis of the May 1998 murder of his friend Russell Crookes. Wallis pleaded guilty, but blamed Sayers for the murder. Leading solicitor Steven Bird represents Sayers now and the CCRC informed him that the review of Heath’s cases had special regard for cases in which medical evidence was critical to the conviction, which did not apply to Sayers’ case and that Sayers’ previous application to the CCRC only argued that there was no forensic evidence linking him to the crime itself and that consequently the CCRC thought that any challenge to Heath’s evidence in Sayers’ case would be incorrect.

Disputed

“My son is innocent,” said Richard Sayers, “but he has remained in prison for almost nine years, maintaining his innocence throughout that time. The CCRC has said that they had special regard for cases where medical evidence was critical to the conviction. Neil’s case does not fit that criterion, but there are still issues that deserve to be investigated.”

Dr Heath took maggot samples from the body, but those maggots were not examined for five years. It remains unclear if Heath even advised police to consult an experienced forensic entomologist. The maggots represented the best possibility of establishing when death occurred – a vital issue in the case. Dr Heath also implied that the partial burning of the body was the result of an intense fire. Intense compared to what? There is considerable evidence to suggest that this was not an intense fire and that Heath’s conclusions led to errors in the interpretation of fire-related evidence, which was another issue of vital importance in this case. Heath’s role in these aspects of Sayers’ case was never considered in the review.

Sayers’ mother Angela shared her husband’s concerns. “We strongly believe that more extensive investigation of the pathology-related issues could discredit Wallis’ claims,” says Mrs Sayers. “By not looking into all of those issues in my son’s case, the CCRC are causing innocent people like my Neil, to remain behind bars when thorough investigation of these issues could prove his innocence and this may have happened in other cases as well.”

A previous application to the CCRC by solicitors who no longer act for Sayers failed to highlight scientific issues that legal experts say are at the heart of Sayers’ case. “It has been explained to us by experts that the scientific issues in Neil Sayers’ case have not been investigated as they could and should have been,” said Trevor Vallens, Vice-Chair of Kent Against Injustice (KAI), a campaigning group that supports the families of prisoners protesting their innocence.

Interest

His case has also attracted the interest of Dr Michael Naughton, a lecturer at Bristol University who founded the Innocence Network UK and the first innocence project in the UK. “If the complaints made by Neil Sayers’ parents are correct, it seems that the CCRC may have been premature in its decision not to investigate Dr Heath’s involvement in Sayers’ case more fully,” said Dr Naughton. “If the CCRC truly wanted to act in the interests of justice, a wider interrogation of other available scientific evidence would have been appropriate before reaching its conclusions.”

KAI has supported Sayers’ family for several years. “As a result of what the experts have told us, we believe that Dr Heath’s conduct effectively prevented Neil from proving his innocence, because it prevented adequate use of other scientific techniques that may have provided vital evidence for him,” said Mr Vallens, but Sayers’ case is not the only case involving Heath that KAI campaigns about.

It also supports Michael Stone who was convicted of the 1996 murders of Lyn and Megan Russell and the attempted murder of Josie Russell. Stone has always protested his innocence. His case arrived at the CCRC just as the Heath investigation was winding down. It was wrongly reported in some media that it would be one of the cases to be investigated further.

“The case against Mick has collapsed,” said Stone’s sister, Barbara, “but even if the CCRC had considered his case in their review of Heath, it would have been rejected because Heath’s evidence against him was not critical. However, if it can be relied on that would support our belief that his DNA should have been found on the bootlace if he was guilty.”

Stone’s DNA has not been found on any items from the crime scene and nor have his fingerprints, yet both DNA profiles and fingerprints have been discovered on vital samples from the crime scene, which remain to be identified.

Concerns

The Attorney General recently declined to investigate all of Heath’s cases as he thought the CCRC’s investigation would suffice. Only cases where medical evidence was critical to the conviction were given special regard in determining which cases should be looked into further. Why?

“If the complaints made by the families of Michael Stone and Neil Sayers are justified, then the CCRC’s review appears to be extremely limited,” said Dr Naughton. “There is other evidence in both cases, but there are also good reasons to question the truthfulness of that evidence as well. This may have happened in other cases too and the CCRC could be responsible for leaving potentially innocent people in prison.”

There are other reasons to examine Heath’s involvement in these cases as well. “We had hoped that the CCRC’s review of Dr Heath’s conduct would help to prove the innocence of Michael and Neil,” said Mr Vallens. “There were two previous cases in Kent where courts rejected Heath’s evidence, yet the CCRC will not confirm if they considered the impact of those cases on Neil and Michael’s cases. Why not?”

Track Record

Two of the eight proven cases were ones that had been referred back for appeal by the CCRC. In his book Trial and Error, Jessel strongly criticised the standard of Heath’s work in Sheila Bowler’s case. Mrs Bowler was subsequently acquitted after a retrial. The murder convictions of Victor Boreman, Malcolm Byrne and Michael Byrne were quashed as Heath’s tribunal opened due to the poor quality of Heath’s work. It had been referred back for appeal by the CCRC for that reason. “All of Heath’s cases should be investigated thoroughly,” said Boreman. “I cannot understand why the CCRC will not confirm if their investigation of Heath looked at the facts of my case and how similar they might have been to other cases when considering which cases should be looked into further.

Meanwhile, there has been no investigation of whether the facts of the other proven cases could have provided grounds of appeal in the forty-six cases that were not deemed worthy of further investigation as a result of the CCRC’s review of Heath’s involvement in those cases.

“If true, it is alarming that eight proven cases which go beyond professional disagreement were not looked into by the CCRC,” said Dr Naughton. “It is at least possible that of the cases that the CCRC, allegedly, decided did not require further examination at least one of them has similar facts to one or more of the eight proven cases, rather than to Fraser or Puaca. As such, it is possible that potentially innocent people are languishing in prison because the CCRC’s investigation did not consider the impact of those cases. If they have considered them specifically, they should simply say so. We had to set up the Innocence Network UK because the CCRC does not investigate the possibility of innocence properly. The way they are claimed to have handled the Heath investigation shows why Innocence Projects are necessary. No stone should be left unturned in the pursuit of justice.”

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.

Hope

Two months ago Yusef Abdullahi passed away, aged just 49. It could and should have been different. Eight years ago I helped to arrange care that he desperately needed. Abdullahi was in a terrible state. He was by his own admission, addicted to heroin and had an alcohol problem too. It was a sadly familiar story and those just didn’t tend to end well. Tony Paris wasn’t in as bad a state, but he needed help as well and Stephen Miller was on their doorstep. It came as no surprise that he required help as well. None of them were given the assistance that the State which had wronged them owed them.

The Miscarriages of Justice Project (MJP) had been established in 2003 to provide advice and assistance to victims of miscarriages of justice to help them rebuild their lives, but there was a problem. The scheme excluded the Cardiff Three totally and many others too. Only people whose convictions had been quashed after an out of time appeal or a reference back by the Criminal Cases Review Commission (CCRC) qualified for help.

Uncaring

This had not been the original intent of Parliament, so they were approached to help anyway. The MJP agreed that it was the perfect opportunity for them and for Abdullahi to illustrate the absurdity of a policy that forced them not to help even in a clear cut miscarriage of justice just because they had the temerity to win their first appeal, but its then Deputy Director Amarjit Kaur pulled the plug.

She claimed that if they even went to see them and assessed their needs, they could lose their funding and not be able to help others, so why had her staff agreed to the visit in the first place? “It’s outrageous,” said miscarriage of justice victim John Kamara. “He was a victim of a miscarriage of justice and clearly needed help. They should have given it to him. What use are they if they won’t help people like Yusef when he needed it?”

Lies

Michael O’Brien, himself a victim of one of Wales’ most notorious miscarriages of justice, raised the issue of people like the Cardiff Three being excluded with the MJP. He even asked, years later, why Abdullahi was not helped when it was promised. He was told that Abdullahi was offered counselling and turned it down.

This is not true. Who says so? Abdullahi for one. Others, including his QC, Roger Backhouse, who helped fill the void created by the lack of care for him, can attest to it. “Yusef was very appreciative of the help that I gave him”, Backhouse said. “He acknowledged and thanked everyone who had taken the trouble to help him.” The MJP was not on that list; he confirmed that he had never received any help from the MJP or offers of help from it.

Long Overdue

After-care for victims of miscarriages of justice was an idea whose time had come at the turn of the millennium. Following Parliamentary questions to then Home Office Ministers Lord Williams of Mostyn and Paul Boateng in the late 1990s, the Home Office’s Probation Unit, which became the National Probation Directorate, established a Working Group in July 2000 to consider how to provide help to victims of miscarriages of justice.

The late Lord Williams had recommended that a voluntary sector organisation that was familiar with resettlement of prisoner issues should develop a national service to provide advice and counselling that was tailored to meet the needs of successful appellants. There was no suggestion in his answer that any groups of victims should be excluded.

Errors of Judgement

We can reveal that despite the clear wishes of Lord Williams, many victims of miscarriages of justice have been denied assistance to rebuild their lives because they did not serve long terms of imprisonment. In fact, they were excluded by an error made by the consultant that the Working Group commissioned to scope the service to be provided.

Peter Shore’s job included devising a service based on the needs of former prisoners who had successfully appealed against their convictions. He also had to investigate the potential number of clients and average length of time served in prison. After that he had to consider whether those who had served the longest should be treated as priority users of the service. There was no suggestion in his terms of reference that prisoners who had served long terms of imprisonment should be the only beneficiaries of the scheme.

But Shore did not follow his terms of reference. The report of the Home Office Working Group itself which made the recommendations that resulted in the MJP being set up makes that clear. “The scoping study looked at the two primary sources of clients in need of an advice service: referrals by the Criminal Cases Review Commission (CCRC) to the Court of Appeal and out-of-time appeals. The Report notes that 80 per cent of the cases referred by the CCRC in 1999/2000 resulted in success for the appellant. This suggests a likely annual figure of around 15-20 new cases each year. There are also likely to be a small number of additional cases per year arising from successful out-of-time appeals. In total, the annual case load for an advice service is likely to be in the region of 70 cases per year (new referrals prior to release, existing cases – immediately after release – plus cases requiring support beyond the immediate post-release period).” [their emphasis].

It is clear from that passage that Shore never investigated whether people whose convictions had been quashed on an in-time first appeal had any care needs at all. The Working Group had emphasised the wrong part. This is the important bit. “The scoping study looked at the two primary sources of clients in need of an advice service: referrals by the Criminal Cases Review Commission (CCRC) to the Court of Appeal and out-of-time appeals.”

Shore had just admitted that he had not followed his own terms of reference and had wrongly devised a service that excluded people who had won in time first appeals. Worse still the Home Office Working Group had not only failed to notice that he had not followed his terms of reference, but commended him for his work and established a so-called service that excluded first time successful appellants like the Cardiff Three and also Annette Hewins and Donna Clarke. As a result of these failings the vast majority of successful appellants were excluded from the provision of after-care. Only Fitted-In highlighted this scandal.

Restitution

“Yusef is the only client that I would do this for”, Backhouse reiterated. “The state has a duty to restore people like him to the position they should have been in. They let him down. It is shameful that the consultant did not follow his terms of reference and that the Working Group did not notice his error. Their mistakes denied Yusef and others in his position the help that they needed”.

Abdullahi was fortunate, if that is the right word. He found that there were people who cared enough to help, but he tested their boundaries. He pushed people away hard. They came back time and time again. Eventually he saw that there was another way for him and he took that opportunity. Despite the odd lapse he stuck to the plan that was developed for him, based on his individual needs. Dev Barrah and George Silcott played an important role in helping Abdulahi too.

He managed to overcome some of his demons, but sadly lasting damage had been done and he died too soon. “The way Yusef was treated disgraces our society”, said Backhouse. “I was not surprised that he became a passionate advocate for restitution. His legacy must include an end to this scandal”.