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.

Absurd

The Cardiff Five is far from the only miscarriage of justice case from the 1980s and 90s that involves lying witnesses and proven malpractice by police, but it is the only one to result in convictions for perjury. It is not even the only one in South Wales. The case against the Newsagentʼs Three (Michael OʼBrien, Ellis Sherwood and Darren Hall) was never compelling, but they lost more than a decade of their lives.

OʼBrien has waged what was on occasions a one-man battle for justice. He has overwhelming evidence that the investigation that convicted him involved far more than the ʻmonkey businessʼ that prosecutor Gerard Elias QC described. There were over a hundred breaches of the Police And Criminal Evidence Act (PACE) and strong evidence of a pattern of malpractice involving Lewis.

Ten years ago the Newsagentʼs Three were bailed, pending the quashing of their convictions for the murder of Phillip Saunders. Despite admitting perjuring themselves in a BBC Wales documentary on the case Helen Morris and Christopher Chick were never charged. The police officer at the heart of that investigation Stuart Lewis had a history of dubious conduct as well. To date the Independent Police Complaints Commission (IPCC) failed to get to the truth. OʼBrienʼs ground-breaking civil action was settled by South Wales Police without admitting liability or issuing an apology¹.

Egregious

Gary Mills and Tony Poole were freed after 14 years wrongful imprisonment in June 2003. Last April the IPCC announced that after an ʻinvestigationʼ lasting over four years, no police officers would be charged or disciplined over their case despite a libel trial, the then Lord Chief Justice, appeal judges and Law Lords reaching different conclusions.

Even the 1996 appeal judges, whose conclusions that the verdicts were safe was quite simply wrong, strongly criticised Detective Inspector Trevor Gladdingʼs conduct, euphemistically branding it ʻexceedingly unwiseʼ. And there was more police conduct that they criticised without interfering with the verdicts then.

Those judges also described the policeʼs conduct towards a crucial witness Paul White, who claimed to have seen a fist make a downward movement and heard a man shout “No Tony, no”! above the sound of a blaring sound system. Nobody else inside the flat heard that and if White had seen what he claims then he had to be at least ten feet tall, as the flat is on an incline to street level.

Burning Injustice

Detective Constables Brian Paine and Mark Cheminais also allowed White to lie in his witness statement by saying he had gone there on his own when he had previously said that he had gone there with the late Andrew Neal. White was facing arson charges at the time, which were not prosecuted subsequently.

He was described at trial as an important witness, but Lord Justice Otton as he then was dismissed his evidence as ʻincapable of beliefʼ. Despite overwhelming evidence that White lied, he has never been investigated for perjury and perverting the course of justice, let alone charged. Why not?

Less than a month after the convictions of Mills and Poole were quashed, Jeffrey Gafoor pleaded guilty to the murder of Lynette White, vindicating the Cardiff Five and the process that would result in perjurers being convicted over a miscarriage of justice began.

Do Mills and Poole have to wait for similar resolution of their case before Whiteʼs lies are even investigated? There is strong evidence of police malpractice in this case that has yet to be adequately investigated too². Do the Newsagentʼs Three have to be vindicated too? There ought to be a better and fairer way.

Apology?

Michael O’Brien’s quest for an apology for over eleven years of wrongful imprisonment has so far been unsuccessful, but he secured the highest ever compensation to a victim of a miscarriage of justice in a civil action against the police. South Wales Police paid O’Brien and his then brother-in-law Ellis Sherwood a total of half a million pounds in 2006.

“In accordance with counsel’s advice payment into court have been made in full and final settlement of the claims by Mr. O’Brien and Mr. Sherwood without an apology”, said Deputy Chief Constable Dave Francis. “It is emphasised that this has been done without any admission of liability”.

Bad Faith

Francis went on to claim that O’Brien and Sherwood had chosen to accept the payments rather than take their allegations to court, but O’Brien says he had no choice but to accept the payment, because he faced bankruptcy if he pursued his claim and the court awarded him less than the police paid into court.

“I stand by all of my allegations against the police”, said O’Brien. “They acted in bad faith. Let them sue me if they dispute this”. OʼBrien has made no secret of his allegations of bad faith. South Wales Police and those accused, especially Lewis have never sued him.

His solicitor who helped him to bring the historic claim was unimpressed with the way the settlement had been portrayed as well. “South Wales Police are trying to depict their payment of £500,000 plus legal costs of probably the same amount again as a commercial settlement,” said Sarah Ricca. “I wonder if anyone is fooled by such a claim.”

The Newsagent’s Three have yet to receive an apology from either the police or criminal justice system. Nor is there an investigation into unlawful conduct by police officers in this case despite the conclusions of former Detective Superintendent Alan Partridge and the endorsement of the appeal court.¹

Refusal

“Their refusal to apologise after all that they put me and my family through clearly shows that they refuse to accept the findings of the CCRC and appeal court”, said O’Brien. It has had a detrimental effect on the Forceʼs attempts to move on past the discredited methods of policing at that time

“I do not trust them to investigate this crime impartially any more”, OʼBrien said. “I tried to give them the benefit of the doubt, but they refuse to investigate my claims of bad faith in the original investigation, let alone allow the Crown Prosecution Service to decide whether there is sufficient evidence to prosecute any of them. Only a fully independent public inquiry can get to the truth of what happened in my case and other miscarriages of justice in South Wales”.

Consistent Critic

Since his release O’Brien has been the most vociferous critic of South Wales police over miscarriages of justice, including his own. A tireless campaigner for a public inquiry into several Welsh cases including the Cardiff Five and that of Annette Hewins, O’Brien has been a consistent thorn in their side.

Ironically an apology and an investigation into proven police malpractice in his case could have avoided the expense to the public that Francis appears so keen to avoid years ago.

Justice

“The fact that they paid such a large amount into court has nothing to do with concerns for the public purse and everything to do with the strength of the evidence against South Wales officers,” said Ricca. “There now needs to be a public inquiry into this and other cases involving South Wales police officers which raise such serious allegations of police misconduct.”

Nobody wants the murder of Phillip Saunders solved more than Michael O’Brien, so much so that he offered a reward of £50,000 for information leading to the convictions of the real murderer. All he ever wanted was justice.

The Long Wait for Justice

For more than twenty-one years Michael O’Brien has waited for an apology. South Wales Police intend to keep him waiting, despite paying half a million pounds to O’Brien and one of his co-defendant’s Ellis Sherwood to keep allegations of bad faith from being aired in court more than two years ago. Despite writing a book, several media appearances, reopened investigations and legal action, he is still waiting.

The decision to abolish the discretionary scheme for compensation and cap the amount awarded to the wrongly convicted may actually result in more civil actions being brought against police, eradicating the proposed savings. This case alone is likely to have cost the public around £1m.

It was re-opened in September 2003 after a cold case review. The murderer(s) of Phillip Saunders have not been brought to justice, nor are we any closer to discovering what went wrong in the original investigation.

Responsibilities

O’Brien has received no apology and the force has not admitted liability. It has been more than five years since the case was re-opened, yet there has been no breakthrough. It appears that attention was actually focused on the original defendants despite compelling evidence of their innocence.

During the re-opened investigation people close to O’Brien and Sherwood were arrested, but later released without charge. Over five years after the case was re-opened the perpetrator(s) remain at large.

Credible Evidence?

On October 12^th 1987 Phillip Saunders was viciously attacked and robbed outside his home in Anstee Road, Cardiff. He died five days later. O’Brien, Sherwood and Darren Hall were subsequently convicted of his murder. There was no credible evidence against them. Their convictions were quashed in 2000 after a year on bail pending their appeal.

After the historic settlement of the legal action by O’Brien and Sherwood, Deputy Chief Constable David Francis said, “Over a period of six years we [South Wales Police] have consistently maintained our position that the officers who worked on the inquiry into the murder of Phillip Saunders did so in good faith and the Force was not liable for malicious prosecution or misfeasance”.

Violations

The Newsagent’s Three, as they came to be known, were referred back to the appeal court in 1998 by the Criminal Cases Review Commission. Detective Superintendent Alan Partridge, then of Thames Valley Police, reviewed police conduct in this case. He found 115 violations of the Police and Criminal Evidence Act. This included handcuffing all of the defendants to radiators.

“Presumably, Mr Francis, police lawyers and the Police Authority believe that handcuffing us to radiators is a sign of good faith”, said O’Brien. “They used criminals against us, threatened our witnesses with prosecution and dropped serious charges against known criminals to get evidence against us. And then they used prison informers and a police officer with a history of overhearing confessions that hadn’t been made”.

Unnecessary Burden

Francis claims that the action was settled in order to avoid unnecessary expense to the public. To date he has failed to explain why it was necessary to run up legal fees for six years including fighting all the way to the House of Lords O’Brien’s attempts to adduce evidence about that officer, who claimed to have overheard incriminating admissions in the cell area of Canton Police Station between O’Brien and Sherwood.

A then Detective Sergeant Stuart Lewis had a history of overhearing so-called confessions in the that area. Five years before the arrest of the Newsagent’s Three, Robert Griffiths – one of the defendants in the Cardiff Explosives Conspiracy trial – was acquitted despite Lewis swearing on oath that Griffiths had confessed in the cells area. Lewis was involved in other controversial cases and was unlikely to give evidence on medical grounds.

If this investigation had been conducted in good faith and without misfeasance, why did they agree to compensate O’Brien and Sherwood and if the only reason was to save an unnecessary financial burden on the public, why did it take six years to reach this conclusion, racking up legal expenses on both sides in the process?

Injustice

Over a quarter of a century ago Michael OʼBrien was wrenched from his family. He suffered a grave miscarriage of justice that robbed him and his family of more than a decade of his life. He always knew that he was innocent of the robbery and murder of Cardiff newspaper vendor, Phillip Saunders – it should have been obvious to others too. During the dark days of his wrongful imprisonment – he was wrongfully convicted along with Ellis Sherwood and Darren Hall – OʼBrien needed an outlet.

He found it in football. He was a Cardiff City and Wales fan. For 90 minutes every weekend he could forget his woes and support his team. In his mind he was on the terraces willing his team on. It helped him cope. OʼBrien was one of the main inspirations for both the Fitted-In Project and Empower-Sport launching our project A Sporting Chance of After-care.

Inspiration

Football had given OʼBrien hope when he needed it most. He survived the miscarriage of justice and he fought tirelessly for others – he still does through the Dylan OʼBrien Foundation.¹ Victims of miscarriages of justice are largely forgotten about by society. The euphoria of their release, even in high profile cases quickly wears off. Support and assistance was hard to come by. Many retreat into their shells again unwilling to engage with people who do not and cannot understand.

But football had helped once. Perhaps it could again. Not only had it helped OʼBrien, but anti-apartheid icon Nelson Mandela and his comrades on the infamous Robben Island, too.

Football Unites

We decided that perhaps football could help again. We approached the Football Association of Wales to provide the practical support that our project needed. They readily agreed. It was fitting that OʼBrien was the first person to be helped under our scheme. Along with a trusted person – an essential part of the scheme – OʼBrien was provided with seats to support Wales against Cyprus. He enjoyed the experience greatly including the result as Wales beat Cyprus 2-1 to remain top of Group B. It helped him too

“Satish should be commended for setting up this project, which can benefit those who have suffered a miscarriage of justice”, OʼBrien said. “I thoroughly enjoyed the Wales v Cyprus game and I am extremely grateful to Satish and the FAW for taking part in this project and hope they continue to support this in the future”.

1 The Foundation was established in memory of OʼBrienʼs son whose death aged two could and should have been prevented. Together with his wife Claire, they campaign for greater awareness of the condition that Dylan suffered from and to help others. Dylan suffered from a rare, but tragically undiagnosed condition Mucopollysaccharidosis (see www.thedylanobrienfoundation.com for further information on the Dylan OʼBrien Foundation).