Scandalous

Tomorrow is Mother’s Day. With a cruel irony – cruel because 20-year-old Lynette White was denied the chance of motherhood that she desired – her murderer becomes eligible to apply for parole after a serving a paltry thirteen years. Twenty-eight years ago on Saint Valentine’s Day Lynette was the victim of what was then the most brutal murder of its type in Welsh history. She was stabbed over fifty times. Her throat was slit more than once. Her murderer continued stabbing her as she lay dying, or even dead.

Tomorrow, of all days, Jeffrey Gafoor, her self-confessed sole killer, completes the excessively lenient tariff that was imposed on him by Mr Justice (Sir John) Royce almost ten years ago. It was a tariff strewn with error, but there’s none as blind as those who refuse to see.

Verging on the sadistic?

When giving his reasons for imposing the tariff, Royce said that Lynette’s murder, “verged on the sadistic”. Lloyd Paris – brother of Tony, who was one of three men wrongly convicted of Lynette’s murder in 1990 – disagrees. “I would say the man was wrong”, he said. “It is sadistic. Well, that was the most sadistic thing that ever happened around me”.

Is there any doubt that it was sadistic? Not for Lloyd Paris.

“Totally, you know. He [Gafoor] says something like, ‘I can remember stabbing her a few times, but I can’t remember the rest. It’s all a haze’. Well he should be able to. Someone should be showing him the facts of what he done, so it’s not a haze no more, so when he starts quoting things, he can say, ‘Yeah, it was a haze but I’ve been told that this was the damage’”.

And he’s not alone in thinking that Lynette’s murder was sadistic. There’s not much that surprises the Western Mail’s Chief Reporter, Martin Shipton, but this does. “Well I don’t know what his perception of the threshold of sadism is, but mine certainly, it would seem, isn’t lower than his” Shipton said with incredulity at the suggestion that it could be seen as anything other than sadistic.

Consequences

It had a considerable effect. If Lynette’s murder had been termed sadistic, the starting point could have been thirty years rather than the fifteen that Royce decided was appropriate.

“Well that’s obviously made a considerable difference, though I’m not clear why he has come to that conclusion, because obviously fifty stab wounds is much more than would be required to kill someone”, Shipton said. “Well that’s a considerable difference clearly. I suppose the prospect this man could be out after fifteen years is quite disturbing given the level of violence that was involved in the crime”.

Lloyd Paris goes further. “That’s where he should have started – simple as”, he said. “It is sadistic. It don’t verge on nothing, you know. The damage done to that poor girl was horrific, so how he could say it verges on sadistic is a joke”.

And there were other problems too. Lynette’s murder was exceptionally brutal. However, there was another serious aggravating circumstance – one that Royce viewed as the most important. Gafoor had allowed five innocent men to go to prison for a total of sixteen years for a crime that he knew he had committed on his own. The tariff should fit the crimes and in this case it plainly did not.

Having set his starting point at fifteen years Royce thought that he could only allow a third for aggravating circumstances. With that starting point he had to include both the brutality of Lynette’s murder and allowing the innocent to suffer in the aggravating circumstances. Five years for both of those aggravating circumstances? “No”, an outraged Lloyd Paris said. “No. Five years is not enough”. It is hard to disagree, especially as Royce only allowed four and a half for both.

Limits

Max Hill QC suggests that there was no limit on Royce regarding aggravating circumstances. “It [a document published by the Sentencing Council] makes it clear that the Coroners and Justice Act, which is the vehicle for this, expects courts to sentence according to the guidelines, but if the court is satisfied that it’s according to the interests of justice to do so, that court can do so and that to me is a clear signal that if there is an unusual feature in a case, which might be an unusual feature that mitigates downwards or an unusual feature that aggravates upwards, every judge has the ability to take that into account and to act on it”, Hill said.

“And so, just before we get into any detail, if you are sentencing someone whose been proven on scientific evidence to be guilty of a serious crime and you are told that there was an earlier prosecution, which led to conviction at a time when the real culprit was living in this jurisdiction and, as it were, did nothing to come forward or to assist, the sentencing judge on being told that, is entitled, using the interests of justice safety valve, to say, ‘Well that is a unique feature of this case and I don’t need anything in black and white in my guidelines to tell me that I can treat that as an aggravating feature’”, he continued, but that was not the issue – the amount was.

After he had taken mitigation into account, Royce decided that the very serious aggravating circumstances only outweighed mitigation by a year. “No, it don’t reflect the enormity”, Lloyd Paris says. “It don’t reflect anything. One year is nothing”.

Miscategorised

But these are far from the only errors of judgement to plague this case. Lynette had not been raped, or sexually assaulted and she was fully clothed, yet this was a sexually motivated homicide. “All but a very few are on the breasts, but sheʼs had her neck cut as well and wrists and so on”, Barclay explains. “Thereʼs a slash across the face. Itʼs a sexually motivated homicide – full stop”.

Could there be any doubt? Not according to Barclay and he should know. He has conducted several reviews of homicides, including Lynette’s. “No there cannot be and I use it in my lectures to forensic psychology students and as soon as I say, what sort of murder is this and as soon as I show the picture without the puffa jacket, itʼs a sexually motivated homicide and donʼt forget those stab wounds are through the puffa jacket and clothing and yet theyʼre still, theyʼre all concentrated on the breasts. Itʼs a single male sexually motivated homicide”.

So was it sadistic? “Well it is quite sadistic doing that sort of stuff”, he said. “No, itʼs a sexually motivated homicide. Sexually motivated homicides are not necessarily sadistic”. Although he would not necessarily use the term sadistic, this was the missing link – this showed that the violence suffered by Lynette was indeed sexually motivated and that should have been considered. The judge mentioned that twenty-five wounds were to her breasts, but tellingly he does not describe it as a sexually motivated homicide, which begs the question, why wasn’t he told that by the prosecution?

Further Error

Having set his starting point at fifteen years, Royce detailed how the policy at the relevant time was to start at twelve years. He felt bound to do the same, but was he? Two other murders that occurred in Cardiff – both sexually motivated and I would say sadistic suggest otherwise. Geraldine Palk was the victim of an even more brutal murder than Lynette in December 1990. Her murderer, Mark Hampson was brought to justice around the same time as Gafoor.

And in 1996 Karen Skipper was murdered. Her estranged husband Phillip was rightly acquitted in 1997. Her real murderer, John Pope, was convicted of her murder in 2009 and again at retrial in 2011. Lady Justice (Dame Heather) Hallett chose a starting point of fifteen years for Hampson. Mr Justices (Sir Nigel) Davis and (Sir Roderick) Evans selected a starting point of fifteen years for Pope. Davis, Evans and Hallett stuck to fifteen years. Either they are wrong or Royce was. There appear to be several grounds to appeal against the leniency of Gafoor’s tariff, but that was not done at the time.

Adding insult to injury, Gafoor appears to have received a very lenient tariff and even that was applied wrongly. At least two of the innocent Cardiff Three, the late Yusef Abdullahi and Tony Paris received harsher tariffs for the same crime. Gafoor could show remorse, do all the courses and progress towards parole in a system designed to help rehabilitate him, while the Cardiff Three could not without admitting a lie that would have prevented their eventual vindication. And now the real killer becomes eligible to apply for parole on Mother’s Day.

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.