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.

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.

Perjury Under Duress

Mark Grommek, Learnne Vilday and Angela Psaila were sentenced to eighteen months imprisonment for perjury on December 19^th. They are the first witnesses to be convicted of perjury in a miscarriage of justice case, where even the prosecution accepted that their allegations of police malpractice, which included violence and threats of wrongful imprisonment, were true.

The case of the Cardiff Five (Yusef Abdullahi, John and Ronnie Actie, Stephen Miller and Tony Paris) was the first miscarriage of justice n the DNA age in Britain to be resolved by the conviction of the real murderer, Jeffrey Gafoor. The four alleged eyewitnesses – Paul Atkins was deemed unfit to stand trial – were the first to be charged with any offence in that case since Gafoorʼs conviction on July 4^th 2003.

Grommek Vilday and Psaila pleaded guilty to perjury in October. There is no doubt that those witnesses perjured themselves, as they have admitted it and the conviction of Gafoor proved it, but such cases are rare and this is unique in terms of it being accepted that they were mistreated by police.

Grommek gave evidence that he was subjected to threats of violence by a then Detective Inspector Richard Powell, before he gave accounts that falsely implicated Abdullahi and Ronnie Actie,. His claims of police malpractice were accepted by the prosecution – no police officers had been charged over this case, although several remain on bail.

The conviction of Grommek, Psaila and Vilday is controversial. Will they be only witnesses to face trial over a miscarriage of justice case in such circumstances? Vilday was also put under intolerable pressure as was Psaila who believed that her blood had been found in the room when Lynette was murdered until told differently in 2004. She reacted with shock at the news.

Discredited Predecessor

There is no shortage of miscarriage of justice cases, but none of the major cases have resulted in such an investigation let alone convictions. The closest is the case of former Greater Manchester police officer Ged Corley, who was accused of a series of armed robberies. After it became clear that he was on duty at the time some offences occurred, several of Manchesterʼs criminal fraternity were allowed to change their accounts and accuse him of master-minding the robberies instead.

After his convictions were quashed in March 1990 an investigation resulted in perjury convictions, but of the armed robbers who had framed him. The only convictions that were obtained of police officers in that case were because they pleaded guilty to lesser offences, but not perjury or conspiracy to pervert the course of justice. That came from one of the biggest investigations that the Police Complaints Authority (PCA), the predecessor of the equally flawed Independent Police Complaints Commission (IPCC) had ever conducted.

Context

Less than two weeks after Corleyʼs convictions were quashed, the Court of Appeal, headed by the discredited then Lord Chief Justice, Lord Lane, freed Alban Turner, but in a manner that left a bad taste. It was clear that crucial witness Kevin Sarbutts had lied. The crucial issues were what lies had he told and why had he told them.

Sarbuttsʼ retraction was referred to the now abolished PCA. The investigation was huge and utterly flawed by design. It did not investigate whether Sarbutts had lied about Turner – just his allegations of police malpractice. Turnerʼs guilt or innocence was crucial, but it was peripheral at best. As such the context was missed and the investigation lacked a crucial focus.

Sarbutts was convicted of perjury in 1994 and sentenced to three years imprisonment after the jury asked for leniency. His claims that he had lied to frame an innocent man were not part of the case against him. The PCA has been replaced, but is the IPCC adequate, especially in dealing with perjury in miscarriage of justice cases?

Institutional Racism

Over 20 months before black aspiring architect Stephen Lawrence was murdered, the Metropolitan Police and Crown Prosecution Service (CPS) had the opportunity to save his life, but institutional racism prevented it. 15-year-old Rolan Adams was brutally murdered on February 21^st 1991. His then 14-year-old brother Nathan escaped the killers. By the time he returned – it was before everyone carried mobile phones – Rolan was dead. His carotid artery had been cut.

A group of 15 racist thugs who had been involved in racist attacks before and since were responsible. They hurled ugly racist abuse at the two boys who had just been waiting for a bus and attacked them. Mark Thornburrow was the only one of them convicted of murder. He was sentenced to life imprisonment with a recommendation that he serve a minimum of 10 years in jail. Despite that over 20 years after losing his son Rolan’s father, Richard, still feels betrayed.

Connived

“They connived to remove the racist element from the murder,” an angry Richard Adams said at the time. “We knew that we would not get justice when they started saying that territorialism rather than racism was the main motivation for the murder”.

Both police and CPS saw it as a triumph as Mark Thornburrow was jailed for life for the murder of 15-year-old Rolan Adams, but 15 racist youths attacked Rolan and his then 14-year-old brother Nathan, who survived the attack. Only 7 of the gang who had racially abused and attacked other black youths on the Thamesmead estate, were charged and that was reduced to 4, and only 3 eventually got 120 hours community service for violent disorder.

Fostering a Knife Culture

“The others are as guilty as Thornburrow”, Mr Adams told me. “My sons could not defend themselves from all of them. They should have been charged with murder by joint enterprise. If the police and CPS had done that my son’s murder might have been the last in the Borough of Greenwich instead of the first of three racist murders”.

Justice has finally taken its course in the notorious case of the murder of Stephen Lawrence, but the ordeal of the Richard and Nathan Adams and their family continues. It could and should have prevented the murders of Rohit Duggal and later Stephen Lawrence and many other knife-crimes too.

Cowardly

Mr Adams is dissatisfied with Thornburrow’s tariff. “10 years for the cowardly murder of my son is not enough,” said Mr Adams. “The judge acknowledged that it was racist and he carried and used a knife. What kind of deterrence is that? If Thornburrow had received the sentence he deserved, the knife-carrying culture that followed could have been stopped in its tracks. He should have been charged with the attempted murder of Nathan as well, which should have increased the tariff. The Lord Chief Justice could have increased his tariff and so could the Home Secretary at that time. Why didn’t they”?

Victimsʼ Rights

Their lives were torn apart by Rolan’s murder  a crime that should have been the pivotal moment in race relations in Britain. Mr Adams believes that the actions of the criminal justice system not only made their ordeal worse, but left other families vulnerable too.

“I have no doubt that institutional racism played a major part not just in the failure to give us justice, but encouraging the racists”, Mr Adams said. “We wanted victim’s rights back then, but we were left to fend for ourselves. The thugs hurled racist abuse at my sons before attacking them because they were black. They did nothing wrong. If the police and CPS had done their jobs properly, Rolan’s murder would have been seen as the racist crime it was and the families of Rohit Duggal and Stephen Lawrence would not have faced that same racism by a system that should have known better”.

Failed Miserably

Witnesses, including Nathan, testified that it was a racist attack and the judge was satisfied that they were right. “The CPS should not have relied on the police alone”, said Mr Adams. “The police had a racist view that this was not a racist murder. They were wrong and they made a terrible ordeal for us even worse. The CPS should have relied on the witnesses. They were there and they knew it was racist. When the judge agreed with us that the thugs who attacked my sons were racist, the police and CPS should have agreed to an independent judicial inquiry to find out why we were failed so miserably. That could have prevented other tragedies”.

Richard and Nathan and their family suffered a terrible ordeal. Nathan turned his back on a promising career in football. He went off the rails as a result of that terrible February night. He has got back on track without any help from the authorities.

“The police and CPS should be thoroughly ashamed of themselves”, said Mr Adams. “Not only did they fail us miserably in the prosecution, but they gave us no support either. Nathan especially really needed help. It took us many years to recover and ensure that Rolan has the fitting legacy he deserves.”

Legacy

They have established the Rolan Adams Legacy Trust to make sure that this important story in Britain’s race relations is never forgotten. They also want justice for both Rolan and Nathan. “Thornburrow got a minimum recommendation of 10 years, but he eventually served only 13”, said Mr Adams. “Why? It was a cowardly racist murder and he claimed he acted in self-defence. 15 against 2 and he had a knife as well and he is allowed to get out too soon”. His thoughts on that are understandably unprintable.

He has no doubt that institutional racism robbed his family of justice and that if the CPS had prosecuted the others through joint enterprise it would have sent a message to others not to encourage racist attacks and even restrain knife-wielding thugs like Thornburrow. He thinks that had those lessons been learned early enough, Rohit Duggal and Stephen Lawrence among others might still be alive. But he wants more – a legacy for Rolan and the justice he and his family were denied 20 years ago.

“There have been fantastic advances in forensic science in the last 20 years”, said Mr Adams. “The police and CPS have a chance to redeem themselves by investigating Rolan’s murder and the attempted murder of Nathan properly through modern investigative methods and forensic science. Both Rolan and Nathan are entitled to justice even if it is 20 years later than it should have been”.

Vindicated

The Cardiff Five (Yusef Abdullahi, John Actie, Ronnie Actie, Stephen Miller and Tony Paris) had been vindicated – proved innocent by the conviction of the real killer. Bizarrely, the CPS and Nicholas Dean QC failed to appreciate the lessons of previous prosecutions of police officers over miscarriages of justice.

In the 1990s – a golden decade of miscarriage of justice awareness – a worrying trend emerged. Convictions fell like flies, or seemingly so. Among them were some of Britainʼs most notorious miscarriages of justice. Beginning with the quashing of the convictions of the Guildford Four (Patrick Armstrong, Gerry Conlon, Paul Hill and Carole Richardson) in October 1989 others soon followed. A whole squad – the notorious West Midlands Serious Crimes Squad – was disbanded and numerous convictions were quashed. But despite this there were no successful prosecutions of police officers over those cases.

Watching the Detectives

Former police officer Ged Corley was convicted of being the mastermind of a series of armed robberies. His convictions, based on the word armed robbers turned super-grasses, were quashed in 1990. The Police Complaints Authority (PCA), discredited predecessor of the Independent Police Complaints Commission (IPCC), investigated a bizarre complaint where the de facto head of the inquiry that convicted Corley, Peter Jackson complained about his own investigation.

Alban Turnerʼs conviction for the murder of Notting Hill Carnival coke-can seller Michael Galvin was quashed in March 1990 as well. His conviction depended on Kevin Sarbutts, whose allegations against the police resulted in a perjury conviction. His allegations against Turner were not investigated. They were to all intents and purposes ignored despite serious discrepancies. That would prove to be far from unusual.

A Gross Pattern of Incompetence

The convictions of the late Paul Darvell and his brother Wayne for the murder of Swansea sex-shop manageress Sandra Phillips were quashed in 1992 in strong terms by three judges headed by the then Lord Chief Justice, Lord (Peter) Taylor. Three officers were acquitted in 1994 despite proof that the original jury had been lied to. Allegedly contemporaneous notes had been written on notebooks issued two months later.

And 1991 saw the collapse of the case against the Tottenham Three (Mark Braithwaite, Engin Raghip and Winston Silcott). That resulted in police being prosecuted, but the previous errors were repeated. Jurors have to believe the original defendants were innocent or they wonʼt convict, especially if the prosecutions are lacklustre, which these were.

Egregious Injustices

These were far from the only miscarriages of justice to plague British justice at that time, but they had something in common – trials of police officers followed, as did acquittals in every case that was contested. Some like the Birmingham Six and Stefan Kiszko were as egregious injustices as could occur, yet despite charges being brought, the accused did not even face trial.

There was a lesson in these prosecutions, or rather there was for those willing to see. In all of the cases that reached trial, the accused police officers employed a simple and reprehensible strategy – a sadly effective one. They turned their trials into retrials of the wrongly convicted. Time after time the CPS failed to grasp the obvious lesson of these cases. Juries would not convict police officers over the miscarriage of justice cases without being convinced that the original defendants had been innocent.

Vindication

The trial of Mouncher et al offered new possibilities. Here was a case where there was no credible doubt about the innocence of the original defendants. They had been proved innocent. Jeffrey Gafoor had pleaded guilty and he was guilty. But the CPS did not have to rely on Gafoor – a man who had knowingly allowed innocent men to suffer wrongful imprisonment for his crime and who had benefited from his assistance to the Lynette White Inquiry Phase III investigation in the form of a reduction in the tariff he received.

An integrated approach to the crime-scene evidence, forensic pathology, blood distribution pattern and later DNA would prove consistent with only one interpretation. Lynette Whiteʼs horrific murder had not been witnessed by two or even four people forced to participate in it. There had not been five killers or even three. The evidence demonstrated unequivocally that there was only one killer – a man and his name is Jeffrey Gafoor. It proved that the Cardiff Five were, as they had always insisted, innocent. It had been proved beyond doubt.

Lessons

If the CPS and counsel it instructed had learned the lesson of all the previous failed prosecutions of police officers in the miscarriage of justice cases, they would have realised that their first and most important task was to convince the jury that there was no credible doubt that the Cardiff Five were innocent and that the evidence had established this fact many moons ago. Then and only then would a jury care.

They had this evidence available to them from a very credible witness that there was no doubt about their innocence, but the jury were denied his evidence. If the CPS and its counsel had done their jobs to the standard the public had a right to expect, the ground would have been cut from beneath the feet of the reprehensible tactic of accusing men who had been proved innocent before it was given the opportunity to sully justice further.

Sadly the CPS trod the discredited path yet again and wasted public resources botching yet another prosecution of police officers in circumstances where it was harder to lose than win, but they managed to snatch a pathetic defeat from the jaws of victory.