Coded

For the last quarter of a century the Crown Prosecution Service (CPS) was supposed to have provided independent scrutiny on decisions over whether or not to prosecute. It had powers to discontinue prosecutions, which it has used, and it had guidelines that ought to have ensured that the Cardiff Five at least never stood trial.

Hywel Hughes was the Crown Prosecutor in this case. He took the decision to prosecute and did so in spite of the Code for Crown Prosecutors that provided guidance on whether the evidence was of sufficient quality to prosecute with a realistic prospect of conviction. Outrageously the CPS has tried to defend its decision to prosecute by pointing out that it secured convictions.

Culpable

Hughes was also responsible for deciding to prosecute the Newsagent’s Three (Michael O’Brien, Ellis Sherwood and Darren Hall) – another high profile Welsh miscarriage of justice¹ – despite over 100 breaches of PACE and other serious failings. Examination of that Code in the Lynette White Inquiry leaves no room for doubt that it was a prosecution that should never have been tolerated.

Securing convictions in a case now acknowledged, and actually obvious even at that time, to be a notorious miscarriage of justice must never be seen as a justification for a prosecution that plainly did not have credible evidence to justify proceedings. The CPS had a responsibility to halt this prosecution in its tracks and an ongoing discretion to stop the prosecution at any stage before wrongful convictions were secured amid a trail of devastated lives.

Pathetic

Instead, it failed to do so in a case where there is no credible doubt about innocence and acquiesced meekly when those charged with causing that miscarriage of justice stood trial and were allowed to claim that the Cardiff Five were in fact guilty when the evidence proved that they were not. The CPS failed to present the clearest possible evidence of their innocence adequately, despite having had this proof from a very credible source – a respected forensic scientist. That is shameful. The irony of this should not be lost.

Allowing the Cardiff Five to stand trial on evidence that would have been rejected as implausible had it been offered as a script to any policing drama is a failing that taints its claims of independence even now almost a quarter of a century later. It had the opportunity to consign the discredited Penderyn methods to history and failed to do so miserably.

Shameful

Its refusal to do its job adequately resulted in other miscarriages of justice that could have been prevented. The CPS must bear the ultimate responsibility for that. Had it refused to prosecute the Cardiff Five the police would have had a clear message – the Penderyn methods (see The Blame Game at http://fittedin.org/fittedin/?p=918) will no longer result in prosecution, let alone convictions.

That in turn would have meant that police would have been faced with a stark choice. They could cling to the outdated methods and hope for the best (worst really), or they could secretly fabricate evidence, telling nobody and hope to get away with it.

Alternatively, they could change their methods, relying on modern investigative techniques and advances in forensic science, resulting in more reliable evidence and a better chance of securing convictions that deservedly stick. Hughes’ failings and those of the CPS robbed society of an efficient and just criminal justice system almost 25 years ago. For that it must receive a large slice of the blame, but there are others deserving of condemnation too.

Apology

In July 2003 history was made. South Wales Police became the first British force in the DNA age to resolve a miscarriage of justice by finding and convicting the real killer. It was quickly followed by an apology from the then Chief Constable Sir Anthony Burden to Lynette’s family and to the Cardiff Five.

That was followed by an investigation into what went wrong. It is the only miscarriage of justice case to have had such an investigation in the world even though there are approximately 150 vindication cases in various jurisdictions. It had a remit that allowed it to investigate anyone and everyone, going wherever the evidence led it. It was the type of investigation demanded over many cases and not just in those where doubt about innocence had been removed.

Farcical

Ultimately the process collapsed in farcical circumstances and justice was betrayed – not by that investigation, but its aftermath. The truth of how an egregious travesty of justice was allowed to occur has not only never been established, it has not been looked for and if the criminal justice system has its way, it never will be. The truth and its power to affect meaningful change in the criminal justice system will be consigned to history.

That will mean that a case – perhaps the only one – that had the potential to improve the performance of the criminal justice system by identifying and hopefully eradicating flaws that contributed to the miscarrying of justice will have its unique potential wasted. That in turn condemns others to share the fate of the Cardiff Five. After their experiences that will be unconscionable.

Nevertheless, it still has that potential and is uniquely placed to achieve meaningful changes that can prevent, or at least reduce the risk of repetition. Rarely has a miscarriage of justice been as glaring as this and rarely has the resolution of that miscarriage of justice been as impressive as it was here.¹

Unacceptable

This case had one of the worst investigations of all time followed by one of the best investigations ever, but plenty happened in between. The vindication of the Cardiff Five was an essential part of the process. Without it there would have been no acknowledgement of responsibility for a case that destroyed lives and not just those of the Cardiff Five and Lynette’s family, but their wider families and even friends and the witnesses that were forced to lie and their families too.

Those witnesses were subjected to practices that a respected judge Sir David Maddison described as: “unacceptable in a civilised society”, but they were sent to jail for telling lies they were forced to tell. Perjury, as Maddison said, ‘strikes at the heart of the criminal justice system’. So too did the methods used to secure that evidence and more besides.

But the police should not be castigated in isolation. They would not have done as they did if they had not seen that these methods were effective in securing convictions and the kudos and promotions that follow. The methods used in this case are not unusual – far from it – and the prosecuting authorities have known about it for years, saying and doing nothing as it suited their interests then.

Values

In Wales these methods can be traced back to the Merthyr Rising of 1831, a miscarriage of justice that had the direst consequences possible. Those methods cost a young and innocent man his life. As the former Governor of Maryland Parris Glendening said: “The search for justice has no statute of limitations. When confronted with the possible miscarriage of justice, even from the distant past, our values compel us to take a second look”. It should not matter when the injustice occurred.

Ten, 20, a 100 years back or more makes no difference – only the evidence should matter, especially in this case. It is the father of vindication cases in Wales, occurring long before South Wales Police came into existence, but the methods used to secure the conviction of Dic Penderyn (Richard Lewis) for stabbing a soldier in the leg, absurdly described as attempted murder, in order to hang him, bear striking resemblance to those employed in the modern Welsh miscarriages of justice.

Like the current cases the perpetrators of that injustice not only were not brought to justice for their crimes. In fact, they were rewarded for their actions. What a shameful message to send to police and others too – one that was not wasted. If the consequences for securing shameful convictions are promotion, kudos and other incentives, how can they be expected to stop using methods that were spectacularly effective?

Culpability

But this tarred the honest police who recognised that miscarriages of justice helped nobody with the same brush as those that perpetrated the miscarriages of justice. That too is a grave injustice. Unless no crime occurred – and that has happened – the inevitable consequence of a miscarriage of justice is that they have achieved the one and only certain way to protect the real perpetrators who remain at liberty perhaps to commit further offences.

For several decades spanning almost two centuries there were no consequences for using these methods and they were used several times to terrible and tragic effect. But blaming the police alone for the modern miscarriages of justice is short-sighted at best. Blaming defence lawyers alone is equally deficient, although both deserve a liberal sprinkling of culpability.