by Satish Sekar © Satish Sekar (November 14^th 2008)

Responsibilities

In May 2002 the Criminal Cases Review Commission (CCRC) referred the case of Gary Mills and Tony Poole back to the Court of Criminal Appeal, using the very arguments that it had ignored for almost three years – a failure it must accept responsibility for. Baron (Harry) Woolf, the then Lord Chief Justice and Mr Justice (Sir Duncan) Ousley had asked, rather than told the CCRC to look at the arguments again.

They did so. A few months later the CCRC referred the convictions of Mills and Poole back to the Court of Appeal. They cited the very arguments they had spent three years ignoring, while insisting on answering and rejecting points that had never been made and would not have been because that had no merit whatsoever.

The actual points made on behalf of Mills was that the summary of Jukeʼs statements that was put to Mills in interview by Detective Sergeant John Jeynes as he then was not an accurate summary of Jukeʼs second statement as Lord Justice (Sir Phillip) Otton et al had claimed, it was grossly inaccurate. Far from dispelling any prejudice from the non-disclosure of Jukeʼs statements, this passage added to that prejudice and plainly so.

Gary Millsʼ lawyers could not have advised him to call Juke as a defence witness without knowing what he had told the police. Jukeʼs assurances were not enough, especially when Mills must have thought that Jukes had said what Jeynes told him in that interview and if he thought that, then he must have believed that Jukes did not actually support his claims of self-defence.

Cumulative Effect

In those circumstances, Mills had no choice. Jukes could not be called. Millsʼ defence had been bluffed into not calling Jukes and that could not have happened without the refusal to disclose Jukesʼ statements. The points made by Bhatt were obvious. Mills could not have called Jukes as a witness without knowing what he had told police. Taking a defence statement was no safeguard as they still did not know if they had been told what he told the police.

Only disclosure could help, but the 1996 appeal judges upheld the Prosecutorʼs Discretion to withhold statements and then misrepresented the interview passage as an accurate summary of Jukeʼs statements when it was not.

The fact that this deception did not result in a confession is totally irrelevant, no matter how many times the CCRC repeated it. The important points were that Mills could not have called Jukes, thinking that he did not support his claims of self-defence and furthermore, Jeynesʼ ʻdeceptiveʼ summary made that inevitable and further questioned the integrity of the investigation.

It also added to the cumulative effect of the malpractice in this inquiry compromising its integrity beyond repair. It is difficult to believe that the CCRC repeatedly failed to grasp the actual points that Bhatt had made.

Squaring the Circle

The appeal judges considered whether the cumulative effect of the malpractice in this case rendered the convictions unsafe in April 2003. In effect they had to pass judgment on what a former Commissioner of the Metropolitan Police once infamously called, ʻnoble cause corruption.ʼ

Lord Justice (Sir Robin) Auld, sitting with Mr Justices (Sir Brian) Keith and (Sir Peregrine) Simon had the opportunity to say loud and clear that there is nothing noble about corruption, but sadly they lacked the courage to do so. They also failed to criticise serious failings of their colleagues in the previous appeal.

Lord Justice Otton had previously quoted the definition of an abuse of process as ʻsomething so unfair and wrong that the court should not allow the prosecutor to proceed with what is in all other respects a regular proceedingʼ. He described Gladdingʼs conduct as ʻreprehensibleʼ and ʻmost unwise.ʼ He did not describe it as perjury and perverting the course of justice.

Had he done so, it would have meant that perjury and perverting the course of justice were not acts so unfair and wrong that a prosecutor should intervene.

The 1996 judgment only made sense if Gladdingʼs conduct did not amount to perjury and perversion of the course of justice, but the 1998 libel trial showed that it did. The convictions should have been quashed on that alone, but it would require almost another five years for that to occur.

Reconciling the Irreconcilable

In his judgment Lord Justice Auld tried to reconcile these seemingly irreconcilable decisions. “The fact that Otton LJ, in giving the judgment of the Court, did not understandably feel able to give it the labels ʻperversion of the course of justiceʼ and ʻperjuryʼ in a proceeding to which he was not a party, does not affect the underlying conduct of which the first Court of Appeal was fully aware or its decision that it had not been such as to render the criminal trial an abuse of process or the convictions unsafe”.

This appears to be suggesting that perjury and perverting the course of justice are not acts so unfair and wrong that the court should intervene and that they do not constitute an abuse of due process of law. If perjury and perverting the course of justice are not abuses of due process of law, it is difficult to see what could ever constitute an abuse of due process, but unfortunately Auld was far from finished attempting to defend the indefensible.

During this appeal it became clear that the passage relied on by Otton to dismiss the 1996 appeal was itself inadmissible as hearsay evidence. Auld said, “Of course, the Court of Appeal did not know, and nor did the House of Lords, which was focusing on the single issue of non-disclosure before it, that DS Jeynes had misrepresented to Mills in interview some of what Juke had alleged in his second witness statement”.

Really? A simple solution to this problem would be for Court of Appeal judges and Law Lords to read passages of interview and witness statements before attempting to rely on them. Auld described that passage of interview as ʻcontaining a graphically phrased, inaccurate, damning and inadmissible accountʼ. However, he failed to refer to Ottonʼs previous description of that same passage: ʻMoreover, it was an accurate summary of the substance of Jukeʼs second statementʼ.

Errors of Judgement

The convictions were quashed on June 17^th 2003. It has yet to receive the media scrutiny it deserves, which we hope can be put right even at this late stage. It involved shocking police malpractice: serious flaws in the trial process, a judgment in the first appeal that was either utterly dishonest or the judges did not read the material they relied on to dismiss the appeals and much more besides.

The House of Lords repeated the error of the appeal court, but despite changing the law because of it, wrongly ruled that Mills and Poole had suffered no miscarriage of justice. But there were more errors to come.

Tarnished at Every Level

The CCRC failed to realise the merits of submissions put to it, requiring a judicial review to persuade it to look at this case again and refer it back for appeal after wasting three years refusing to respond to the arguments that had actually been made. The judges at the second appeal seemed more concerned with protecting their colleagues from criticism than the interests of justice.

As the former Lord Chief Justice, Lord Woolf, said at the Judicial Review, “Almost every aspect of the prosecution is tarnished”. The failure to hold the criminal justice system accountable for the persistent failings that occurred in this case is a sad indictment both of that system and the media that allow such abuses to pass without comment.

Discredited System

Despite the decision of the libel trial jury Trevor Gladding has yet to face any charges. The Independent Police Complaints Commission (IPCC) agreed to supervise an investigation by the Metropolitan Police into Gladdingʼs conduct in 2004. It is unclear if it investigated other instances of dubious conduct such as that of Paine and Cheminais.

In fact it is unclear if the Met Police investigated anything at all. Nevertheless, four years after receiving the complaint, which was referred to it under the old discredited system which contributed to the demise of the Police Complaints Authority, the IPCC decided that no action would be taken against Gladding or any other officer without actually considering the merits of the evidence against him.[1]

Found Wanting

Despite the swingeing criticism of Paul White at the first appeal, he has yet to face any investigation into his conduct, which has taken on greater significance in the light of events in another notorious miscarriage of justice. The prosecution of Learnne Vilday, Angela Psaila and Mark Grommek for perjury in the case of the Cardiff Five was an important precedent.

But despite clear evidence of perjury the CPS failed to prosecute White.[2]

As with other victims of miscarriages of justice, both Mills and Poole face problems re-adjusting to normal life. The Discretionary Scheme for compensation was abolished – shamefully – in 2006, but Mills and Poole came under the Statutory Scheme and would be compensated for their ordeal. However, no amount can ever compensate them for unjustly taking away more than fourteen years of their lives[3] and what about the victimʼs family?

Hensley Wiltshire should not have died, a fact acknowledged by the judges at the first appeal. If he had been treated properly on either visit to the Gloucester Royal Infirmary he would not have died and there is evidence never heard by any court that suggests that contrary to Ottonʼs assertion that Wiltshire refused admission to hospital, he wanted to be treated, but never received it.

This was in all respects an extremely shoddy case, but almost twenty years after Wiltshire needlessly lost his life and every tier of the criminal justice system performed abysmally, nobody has taken responsibility for any of the failings in this case or apologised to any of the victims of it.[4] This case was and remains an affront to justice.

[1] See Same Old Story at http://fittedin.org/fittedin/?p=733

[2] After this article was originally published Grommek, Psaila and Vilday were jailed for perjury. Mr Justice (Sir David) Maddison – the presiding judge at their trial – said, “Perjury strikes at the heart of the criminal justice system”.

[3] Mills and Poole were subsequently compensated. However, that raised other problems subsequently, especially for Poole as the lack of targeted after-care took a very heavy toll on both of them.

[4] When this article was originally written twenty long years had passed with numerous failures throughout the system not being addressed. Sadly more than a quarter of a century has now passed. The refusal to address the institutional and system flaws continues, meaning that other miscarriages of justice will occur at great expense to all the victims and also the public, which continues to see resources wasted on a system that remains fundamentally unaccountable and unfit for purpose.

by Satish Sekar © Satish Sekar (November 14^th 2008)

Incandescent

In April 1996 David Jessel, the then presenter of Channel Fourʼs sadly defunct Trial And Error, was justifiably incandescent with rage. He addressed the media brandishing a copy of Lord Justice (Sir Phillip) Ottonʼs judgment. “This is yet another shoddy judgment in a shoddy case”, fumed Jessel. It would take another seven years for the truth of just how shoddy the then Lord Justice Ottonʼs judgment was to see the light of day.

Gary Mills and Tony Poole had been convicted of the murder of Hensley Wiltshire in January 1990, after a year on remand, but it would take more than six years for the appeal to be heard and that judgment would be more than controversial – it was either cravenly dishonest, or Otton had allowed himself to be misled in spite of the evidence, or he had not examined the evidence which he claimed to rely on.

At its most charitable, he was plainly wrong.

Otton quoted a passage of an interview with Mills, arguing that it dispelled the prejudice of the refusal to disclose the statements of an eyewitness, Ian (Neville) Juke as the passage referred to claims allegedly made by Juke. Otton said, “Moreover, it was an accurate summary of the substance of Jukeʼs second statement”.

But it wasnʼt. A fact that would be acknowledged by both police officers who conducted that interview in a libel trial two years later and many others too. Either Otton (sitting with Mr Justices Keene and Ian Kennedy as they then were) had not read Jukeʼs statements and that passage of interview, or he had delivered a judgment that they must have known was untrue.

Integrity Lacking

We[1] became involved in this case in 1991, because there were several causes for concern about the integrity of this inquiry that bore similarities to the case of the Cardiff Five, which is an acknowledged miscarriage of justice. However, this had unique aspects as well which deserved the publicʼs attention.

Detective Inspector (DI) Trevor Gladding (the number two in the inquiry) had not only perjured himself and perverted the course of justice, but there was a tape-recording that proved it, yet despite the defence having a copy of it, the jury never heard it.

The conduct of Gloucestershire Police, especially that of Gladding and its impact on the integrity of the investigation that convicted Mills and Poole, was deeply troubling. If ever there was an inquiry that not only had to be squeaky clean, but also it had to be seen to be of the highest standards of professionalism and integrity, this was it.

Sadly, it fell far beneath those standards. The 1996 appeal revealed that the extent of police malpractice was greater than had previously been thought. Detective Constables Brian Paine and Mark Cheminais had allowed the witness Paul White to give information in his statement that they knew to be untrue. The appeal judges criticised their conduct, but decided that it would have made no difference because the jury would not have believed White anyway.

Incapable of Belief

There is no question that Whiteʼs evidence was false and should not have been relied on as he claimed to have seen and heard things from the street that beggared belief, but the jury had heard his evidence and they were not aware that he had been treated in a manner that undermined the integrity of the inquiry – an important aspect of this case.

Similarly, the Court of Criminal Appeal dismissed Juke as incapable of belief, yet the glossed over inconsistencies in the account of crucial witness Kimberley Stadden and substituted their own judgment for that of the jury. However, in 1996 this practice was far from rare, even though the law demands that the determination of facts is solely a matter for juries to decide.

Far too often appeal judges usurped the function of the jury and the case of Mills and Poole graphically illustrated the dangers of such an approach. The decision of the Law Lords in the case of Donald Pendleton reiterated that determining facts is the sole domain of the jury and it would eventually prove to be a significant case for Mills and Poole, but usurping the role of the jury would not be the only point of law that these eminent jurists would interpret wrongly.

Tarnished

During their unsuccessful appeal in 1996 and their 1997 appeal to the House of Lords, it was acknowledged that there were three material irregularities, each of which related to police conduct.

There was further evidence that cast the integrity of this inquiry in a very poor light, but the judges and the Law Lords were not convinced that a miscarriage of justice had occurred. By then we were firmly convinced that it had and also that this inquiry fundamentally lacked integrity and the prosecution was severely tarnished at best.

ʻExceedingly Unwiseʼ

Mills and Pooleʼs defence had intended to call Juke as a witness for the committal hearing in order to discover what he had said in his statements to police that the prosecution used their discretion to withhold, but their aims were thwarted because Juke was kept away from it due to the improper interference by DI Gladding prior to the committal hearing.

However, the defence lawyers had a tape of Gladding threatening Juke with arrest if he attended that hearing, but inexplicably this was not played to the jury at the 1990 trial, even after Gladding had denied on oath that the conversation had taken place.

A formal complaint lodged after the convictions proved that Gladding had indeed threatened Juke with arrest and more if he attended the committal hearing, but the investigating officer George Hedges wrongly concluded that Gladding had been mistaken rather than lying in his evidence at the trial.

Tainted

Evidence relied on by the appeal judges to dismiss the 1996 appeal was itself tainted. The judges believed that a passage of interview with Mills was an accurate summary of Jukeʼs second statement and that it dispelled any prejudice from the non-disclosure of that statement, but it did not.

Both officers involved in that interview (a then Detective Sergeant John Jeynes who has since been promoted to Superintendent) and Gladding accepted in evidence that it wasnʼt an accurate summary. Consequently, it increased the prejudice done to Mills rather than dispelled it.

Despite this the CCRC initially refused to refer the case back to the appeal court. Mills and Poole judicially reviewed that decision in December 2001. The judges, Lord (Harry) Woolf (the then Lord Chief Justice) and Mr. Justice (Sir Duncan) Ousley, found that the CCRC had not acted unlawfully or irrationally, but took the extremely rare step of voicing their concern over the case. Lord Woolf said, “Almost every aspect of the prosecution is tarnished”.

Wasted Resources

The CCRC had previously refused to grasp the point that the police malpractice had to be looked at first individually in case any aspect was so outrageous that the convictions had to be quashed and if not, then cumulatively in case, taken together, they so undermined the integrity of the inquiry that the convictions could not be tolerated.

It had assigned the case to a caseworker who failed to see the point and commissioners who also could not grasp it and preferred to completely ignore the points that their solicitor, Raju Bhatt, had raised in order to answer spurious complaints that had not been made. Bhatt had to repeat the actual points he made before opting for judicial review.[2]

This was not a case that the CCRC can take any credit from as the failure of several members of its staff to consider the submissions that had been made adequately caused unnecessary delays in dispensing a measure of justice to Gary Mills and Tony Poole, which resulted in them suffering unnecessary damage.

It wasted public resources that could have been put to better use. The CCRC acknowledges that it got this case wrong, but it has yet to implement procedures to prevent recurrence and formally apologise to them for prolonging their ordeal. We hope that it has improved its procedures to ensure that this never happens again.

[1] The Fitted-In Project did not formal exist then, but many of the people who established it and still participate, knew each other then and were working together. This was one of the cases that demonstrated both that and the need for us to organise formally to achieve our objectives.

[2] Before Bhatt took over the case, exactly the same point that Bhatt subsequently made was put to the CCRC by us. At the very least the CCRC should have answered the point being made, rather than an argument without merit that nobody had made. We hope they have learned that particular lesson.

Stefan Kiszko was vindicated over a decade after his death by the conviction of the real killer of Lesley Molseed, Ronald Castree, but there are others who will never be vindicated. For them exoneration is as good as it gets, but they have to live with petty whispering campaigns questioning their innocence.

Hensley Wiltshire died in controversial circumstances in January 1989. Wrongly held in custody and denied the medical attention he needed Wiltshire deteriorated to the point of collapse. He had visited hospital twice in the night of January 5th-6th. The record of his injuries makes interesting reading. Significant injuries were discovered at the post-mortem examination that were not detected on either previous visit to hospital.

The discrepancy was never adequately explained. It was plain that either Tony Poole and/or Gary Mills had inflicted those injuries or Wiltshire had suffered a beating in the cells of Gloucester Police Station. The medical evidence was never properly resolved and nor was the issue of consent to be treated, but there were other causes concern that contributed to a terrible miscarriage of justice.

Inappropriate

Mills and Poole always instead that Mills had defended himself from three attacks by Wiltshire and that Poole was not involved. Neville Juke had been present throughout the incident in Poole’s Conduit Street flat. He was, as the jury recognised, an important witness, but the jury never heard from him.

Juke had been warned off attending the committal hearing. He had been threatened with arrest if he came. Juke recorded part of that conversation – one that then Detective Inspector Trevor Gladding lied about at their trial in 1990. Amazingly, Mills and Poole’s defence had that tape and therefore knew that Gladding had lied to the jury, but a well-respected QC didn’t play it to the jury.

Ian Macdonald QC believed that he would have had to call Juke to verify the tape. In fact he didnʼt. The now discredited Police Complaints Authority (PCA) proved that Gladding was the officer on the tape easily by comparing that recording to known examples of Gladdingʼs voice from interviews that he had conducted.

Had the jury heard that tape it would surely have destroyed Gladding’s credibility and shown the prosecution in a very poor light. And this error came from a very experienced and competent QC.

Permitting Perjury

But Gladdingʼs conduct was far from the only example of inappropriate conduct by police in that investigation that went unchallenged at trial. In time disclosure obligations changed and a pattern of misconduct emerged. A crucial witness claimed to have seen into the flat while Wiltshire was allegedly been attacked and heard Wiltshire say ʼNo, Tony, no!ʼ above the sound of a sound-system at full volume.

Unknown to defence lawyers police officers knew that the witness, Paul White, had lied. In fact, they knowingly allowed him to claim that he had gone there on his own in his statement when he had told them previously that he had gone there with another man who did not verify what White claimed to have seen and heard.

Integrity

It also emerged that Gladding and a colleague who later rose to the rank of Superintendent, John Jeynes, had misrepresented the content of Jukeʼs second statement to police. This had the effect of deceiving Mills and his defence lawyers into thinking that Juke did not support his claim of self-defence.

Having been bluffed in this manner not to call Juke, it took 14 years to acknowledge that the investigation lacked the integrity required to be the basis of safe convictions. It should never have taken so long. Neither Mills nor Poole received the extent of help and support that they needed to rebuild their lives, despite the existence of a government-supported scheme to assist victims of miscarriages of justice like them. Gary Mills sadly passed away on December 10^th 2012.

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.

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.

Extraordinary

The extraordinary case of Gary Mills and Tony Poole is in the news again. After fourteen years of wrongful imprisonment, they were freed in June 2003 – the last seven because senior judges did not know the law or ignored it. The main reason for the quashing of their convictions was the cumulative effect of the lack of integrity of the inquiry into the controversial death while in police custody of Hensley Wiltshire in 1989.

More than four years ago they lodged a complaint with the Crown Prosecution Service (CPS) alleging criminal conduct by police. They claimed that the number two in the inquiry, former Detective Inspector Trevor Gladding, had perverted the course of justice and perjured himself. Allegations of serious malpractice were made against other officers as well.

Two different sets of appeal judges: a high court jury¹ and a former Lord Chief Justice were far from impressed with Gladding’s conduct. Eventually, the Criminal Cases Review Commission also declared itself dissatisfied with the effect that several instances of police malpractice could have had on the safety of the convictions and referred it back to the Court of Criminal Appeal, which heard it in 2003.

Inadequate

The CPS referred their complaint for investigation, which was picked up by the Independent Police Complaints Commission (IPCC) in April 2004 and would become a major test of the independence of the new body. Nearly four years later it issued a provisional report dismissing the complaint.

“The investigation report belongs to Gloucestershire Constabulary and it is for them to decide what can be released into the public domain,” said IPCC spokesperson David Nicholson.

I raised eleven questions with them. He responded with: “It is for Gloucestershire to decide whether and how they answer.” To date, the IPCC, CPS and Gloucestershire Police have not answered the queries. In other words, the IPCC and CPS think it is acceptable for the bodies complained about to exonerate themselves and decide what information should be allowed into to the public arena. So much for openness and integrity.

Legacy

Their complaint was a legacy case, meaning it was investigated under the old rules, which meant that independent investigators were not used and there was no requirement of disclosure of the report. The IPCC has done itself no favours at all.

“The matter has now been concluded and the complaints were unsubstantiated,” said Nicholson. Such a comment is quite frankly ludicrous and merely emphasises the unsatisfactory nature of the IPCC.

The IPCC’s finding contradicts all previous inquiries including the much criticised investigation for the Police Complaints Authority (PCA) conducted by former Chief Constable of Durham Police George Hedges in the early 1990s.

Culture of Secrecy

The IPCC was established to counter the culture of secrecy surrounding complaints against police. This shameful decision and refusal to make its full findings public will taint its claims of independence for years to come.

The Commissioner in charge of this complaint was Rebecca Marsh. She wrote: “On the evidence available, the IPCC is not satisfied that there is a realistic prospect that the conduct of the officers complained of fell below the required standard. We are therefore minded to conclude that misconduct proceedings cannot be justified.”

And this in the case that the then Lord Chief Justice, Lord Woolf said: “Almost every aspect of this prosecution is tarnished.”

Nevertheless, we now know that perjury and perverting the course of justice do not constitute an abuse of due process of law² and that such conduct does not fall below the required standard of conduct from police officers,³ but that it is not libellous to say that Trevor Gladding perverted the course of justice and perjured himself.⁴

“We agree that this has taken a very long time to resolve,” said Mr Nicholson. “The setting up of the IPCC was because of frustrations with the ‘previous system’ and the length of time that cases took to resolve.”

The average IPCC investigation in the relevant region takes 166 days. This investigation took almost four years to reach incredible conclusions at great expense in a report that will almost certainly never see the light of day. The name has changed, but judging by this decision not much else.