Presumed Guilty

“I don’t care about the money,” is a frequent refrain of the innocent. “I want my name back and an apology.” Usually they get neither, because miscarriage of justice organisations and campaigners still don’t get it. Quashing a conviction is no more than half the job. The criminal justice system does not care about guilt or innocence; it never did.

An acquittal at trial is nothing more than an admission that the prosecutor could not prove the defendant guilty beyond reasonable doubt. It is not a declaration of innocence. Appeal is no better. If a conviction is quashed, it meant that the conviction was found to be unsafe. That is not the same as a finding of innocence. Occasionally judges make sure that there is no doubt, by saying that they are not finding the appellant innocent. There is no verdict of innocence, yet that is demanded now in compensation claims.

Exoneration

Annette Hewins, Sion Jenkins, Barry George and Andrew Adams are part of a growing trend. Their convictions were quashed on appeal, yet none of them have received a penny in compensation because the Assessor decided that they had not been exonerated. The fact that there is no verdict at trial or appeal in British law that guarantees exoneration seems to have escaped politicians, eager to save pennies at the expense of those wronged by society.

The former Unionist MP, Lord John Laird, sought clarification. Laird asked the government to “issue a practice direction to criminal courts ensuring judges declare any defendant acquitted at trial, or appellant whose conviction has been quashed as unsafe on appeal, as innocent at the close of the court proceedings.”

He also asked the government “whether they will ensure that appropriate compensation and aftercare is provided to such persons?” His question and the subsequent answer from Lord Tom McNally, a Minister of State at the Ministry of justice were ignored by media expressing an interest now the Supreme Court is considering these issues.

Practice

“Practice directions in the criminal courts are a matter for the Lord Chief Justice, not the Government,” said McNally. “It has long been an important feature of our criminal justice system that a person charged with an offence is presumed to be innocent until proved guilty. A person found not guilty is to be treated as innocent, as too is a person whose conviction has been quashed on appeal.”

But the practice is different. Exoneration is required for compensation now. “A person whose conviction is quashed on appeal may apply for compensation under Section 133 of the Criminal Justice Act 1988. Entitlement to compensation under that provision will be considered shortly by the Supreme Court in the case of Adams.”

Actually they can’t. The abolition of the Discretionary Scheme means that any person whose conviction is quashed in an in time first appeal will not qualify under Section 133. Even if there is no doubt about innocence whatsoever, they are not entitled to anything and the government not only knows it, but refused to right the wrong. The very same minister Lord McNally said as much previously when asked to restore the Discretionary Scheme by Lord Laird.

“The discretionary compensation scheme was abolished on 19 April 2006 by the then Home Secretary and the coalition Government have no plans to reintroduce it,” said McNally. “We will continue to consider applications for compensation under the statutory scheme, Section 133 of the Criminal Justice Act 1988, which fully meets our international obligations.”

It also excludes anyone who had the temerity to be acquitted or have their convictions quashed on a first appeal even if they are proved innocent later by the conviction of the real perpetrator.

The Cardiff Five: Innocent Beyond Any Doubt

Satish Sekar

Waterside Press, Hook, Hampshire, 2012, 978-1-904380-76-4 [£16.50]

Firstly, this book was published in 2012 and this review is in early 2016 so there has been a three year gap. However, given the speed at which most miscarriage of justice cases take to be independently reviewed this is no more than the blink of an eye, which in itself should be unacceptable.

This book relates largely to the murder of Lynette White in Cardiff in 1988 following on from which five men stood trial, two were acquitted and three were convicted and sentenced to life imprisonment. Eventually, the real and sole killer was convicted and DNA analysis played a significant role.

The book is written by a man with passion for this case. In my experience, miscarriage of justice cases do not get overturned without at least one person, and preferably a team, constantly driving into the criminal legal system and often against the odds over many years in order to get a proper review undertaken – clearly Mr Sekar was one such person.

As with many miscarriage of justice cases, there were multiple twists and turns and some truly bizarre events had to be accepted by the criminal legal system in order for the scientific results to be explained, the police investigation to continue along its track and ultimately convictions to be achieved. In the case of the murder of Lynette White one scientific issue (there were, as is often the case, several) was with blood grouping: either the Cardiff Five plus another person never previously mentioned by the Police had to be involved in order to account for the blood group results, or one person (not including any of the Cardiff Five) acted alone and it was that person’s blood that was present at the scene. The system chose to accept six offenders contributing to one blood result rather than consider the far more likely scenario of one person and the police investigation being incorrect.

Time of death issues and offender profiling also occurred in this case, the details of which are morbidly fascinating and disturbing because they will be familiar to anyone involved in crime investigation. Having said that, the care with which the scene was re-examined and samples collected from underneath paint years after the crime occurred are impressive and, much as I am loathe to say it, would have a great place in an episode of CSI – and actually be an accurate portrayal of forensic science for a change.

Mr Sekar’s passion for the case is apparent throughout this book. The stories of the Cardiff Five and the other cases to which he refers are incredibly important. At times though it seemed the passion caused some of the detail to be a bit jumbled for a reader unfamiliar with the case to follow and a certain amount of repetition crept in.

However, there can be no doubt that there is a need for books to be written and education to be provided about how these cases occur in the hope that their occurrence diminishes in the future. Miscarriages of justice occur wherever people are involved in making decisions about how they think crimes occurred; I have been involved in re-investigation of three of New Zealand’s most high-profile such cases and there are more on the horizon, so the issues raised by Mr Sekar are international and current.

It is critical there be transparency and open reporting of such cases and this book adds to the growing pile of publications that have been written and need to be written so that we do not become complacent and accept that miscarriages of justice are simply a cost of the investigation of crime. As stated by Michael Mansfield QC in the Foreword, “Questions asked behind closed doors by internal reviews are self-serving and left to collect the dust of darkness.”

As for the point raised by Mr Sekar towards the end of the book, “Knowingly allowing the innocent to suffer wrongful imprisonment, whether convicted or not, should carry a penalty” – anyone who learns about potential miscarriages of justice should not disagree.

Dr Anna Sandiford

Impact

The law allows the families of victims the right to give victim statements about how the murder of their loved one has affected them to judges before the tariff – the minimum that must be served before an offender is eligible to apply for release on parole – is set. This gives victims a say, but what about other victims?

Lynette White’s family did so before Mr Justice Royce imposed the tariff on Jeffrey Gafoor. Royce referred to them in his explanation of the tariff and described them as powerful, but Lynetteʼs family were not the only victims of Jeffrey Gafoorʼs hideous crimes. Despite being adversely affected by Gafoorʼs crimes for the rest of their lives the criminal justice system and criminal actions during the investigation, the Cardiff Five (Yusef Abullahi, John and Ronnie Actie, Stephen Miller and Tony Paris) were given no input at all.

Surely they deserved that small courtesy that could have assisted in understanding the full effect of Gafoor’s crimes, especially as it is not even a criminal offence to knowingly allow innocent people to suffer wrongful imprisonment for his crime, but shouldn’t it be?

Support?

More than five years after they were proved innocent beyond any doubt they will probably never recover from their ordeal. Depriving them of the opportunity to detail how they too were victimised by Gafoor’s actions adds to it by denying the fact that they suffered greatly at his hands too.

Allowing them to give victim statements demonstrates in practice that they have indeed been victimised by his actions and shows that the criminal justice system takes its responsibilities seriously. It is an area that has shamefully neglected until now. There have been other vindication cases since the Cardiff Five made history and there will be more to come.

In this case it has already been proved that they were the victims of crime as well, as perjured testimony contributed to their wrongful convictions, but where is the support for them? As victims of crime are they not entitled to the assistance provided to others by organisations such as Victim Support? And if not, why not?

To date they have never received any and were not referred to Victim Support by the police. Nor did Victim Support make any effort to contact them despite the high profile nature of this case. They are clearly victims as well and should be treated as such, so the criminal justice system should acknowledge this and allow the victims of such miscarriages of justice the right to be heard and receive whatever.

Vindication

The law can be amended easily to allow vindicated victims like the Cardiff Five to give victim statements as well. It is surely not too much to ask that they be given the same courtesy that is afforded to the family of the victim of the murder. Other miscarriages of justice have been resolved in this manner now.

However, tariffs or sentences have been imposed without acknowledging the status of those who suffered the miscarriage of justice as victims deserving the right to voice their concerns. It was already too late for Stefan Kiszko who died without seeing Ronald Castree convicted of the murder of Lesley Molseed, but not for others.

Colin Stagg and the original defendants in the Damilola Taylor Inquiry were and alive when Robert Napper was brought to account for the killing of Rachel Nickell and the four boys who originally stood trial for the murder of Damilola Taylor when the Preddie brothers (Ricky and Danny) were finally brought to justice. There will be others.

The Right to be Heard

It is difficult to imagine a more disgraceful way to treat all of the victims of such cases and it is inevitable that there will be others that are resolved in this manner in the future. Without all the victims of these cases being given a voice further injustice will occur. The families of the victims of homicides have their say when tariffs are considered, but the victims of these miscarriages of justice are excluded by the system that has wronged them.

Why should the victims of such miscarriages of justice be denied the right to make victim statements? If victims are to be truly put at the heart of the criminal justice system then all the victims of cases such as this must be given a voice. It cannot roll back the years or spare them the ordeal that they have suffered, but acknowledging that they too are victims would be a start – albeit a small step, but long overdue.

Incomprehensible

The abolition of the Discretionary Scheme for compensation means that were a similar case to the Cardiff Five to occur now they would not be compensated unless they sue, despite being demonstrably innocent. They did not come under the Statutory Scheme. This is particularly egregious as many victims of miscarriages of justice receive no care unless it comes under their claim for compensation.

Thanks to a shocking error by the consultant hired by the Working Group, the vast majority of victims of miscarriages of justice received no help at all from the State that wronged them. Peter Shore (not to be confused with the former MP) was asked by the Working Group set up by the Home Office to consider the provision of after-care. His conclusions make it clear that he did not follow his terms of reference. As a result even the limited help provided is to be denied the victims of injustice who had the temerity to have their convictions quashed at a their first appeal..

The logic is that if a conviction is quashed on a first appeal it shows that the system is working as intended. It shows that a small area has been corrected, but still denies them even the limited after-care provided by the Miscarriages of Justice Project for victims of miscarriages of justice. Consequently, despite being proven innocent beyond doubt the Cardiff Five were denied any assistance rebuilding their lives.

Shameful

This is a shameful way to treat the victims of an easily preventable miscarriage of justice – one where there is no credible doubt about innocence. If this issue is not addressed it is inevitable that more victims will be created. And it does not end here. What about the way Lynette’s family have been treated. They were assured that the original defendants were guilty. Indeed the late Terry White reacted furiously towards the original defendants on various occasions.

Her family had to endure the certainty that the guilty were paying for their crime being taken away and then 11 years with nobody being punished for it only to find out that they had been badly misled and had hated the wrong people for years. They have yet to receive an apology for the failings of the investigation and the effect that it as had upon them. What assistance do they receive in coming to terms with what happened and the guilt of having hated the wrong people for so long?

They receive no compensation for the failings of the criminal justice system. Peggy Pesticcio in particular was forced not only to cope with the loss of her daughter, but she had to fight tenaciously to get justice for her daughter. She paid a very high price that has not been acknowledged or catered for.

Steven Bird
(Leading solicitor and Treasurer of the Criminal Appeals Lawyers’ Association)

We highlighted issues that other media have ignored – issues that contribute to the miscarrying of justice and the continued devastation of the lives of all of the victims of these injustices.Yusef Abdullahi was deprived of assistance to rebuild his life despite a government scheme to assist victims of miscarriages of justice. It took 8 years to correct a scandalous error by a Home Office appointed consultant. All other media have ignored this scandal.

Richard Adams
(Father of racist murder victim Rolan and Trustee of The Fitted-In Project)

We offered the BBC unique access to the historic inquiry into what went wrong, having secured unprecedented co-operation from the police. The BBC didn’t bother to accompany us to Cardiff to do so in 2008, refusing to commit to a story it now says is important for them to cover.

Mags Gavan
(BAFTA award-winning documentary-maker)

Sekar was offered an insulting choice by the BBC to take part in the programme by the BBC, which they have not tried to impose on other journalists who have not achieved as much. Sekar agreed to be interviewed, subject to a complaint. The conditions would ensure that his criticisms of the BBC designed to assist the reporting of miscarriages of justice and related issues would never be broadcast.

The Fitted-In Project is concerned about the conditions that the BBC tried to impose and justify even now. Nobody else has been treated like this, especially after an unprecedented achievement. For the truth about the Lynette White Inquiry see Sekar’s books Fitted In: The Cardiff 3 and the Lynette White Inquiry and The Cardiff Five: Innocent Beyond Any Doubt, which was published recently by Waterside Press.

Satish Sekar pioneered the concept of vindication. The FIP is proud to launch Vindication – The Last Hope of the Innocent today (September 5th). It aims to ensure that the lessons of cases where victims of miscarriages of justice have been proven innocent by the identification or even conviction of real killers are fully learned. There have been six cases of vindication in Britain in the DNA age, but only one had an investigation of what went wrong – a process that was ultimately betrayed. Vindication – The Last Hope of the Innocent is long overdue.

“This is the story of one of the most notorious miscarriages of justice in British history told by Satish Sekar, whose unremitting efforts helped lead to the vindication of the Cardiff Five. They always were innocent, but their freedom was not enough. The memory of Lynette White and her family deserved justice too and that required the conviction of the real killer, Jeffrey Gafoor.This book shows how even a very difficult case can be solved if there is the will to investigate it thoroughly. It details how an awful miscarriage of justice was finally corrected by the conviction of the real killer. Satish’s work was pivotal to achieve this, and he is keen to continue the fight to ensure that the lessons of an extraordinary case are properly learned.”

Steven Bird (Solicitor and Treasurer of CALA)

“I wish Mr Sekar all the best in his work. His passion in ensuring that all available support is directed to those wrongly convicted and incarcerated is admirable.”

The Rt. Hon. Jack Straw (Former Home Secretary and Minister of Justice)

We are delighted to launch Proved Innocent – Vindication. We highlighted the inequity of a system that ignored some victims of miscarriages even though there is no doubt about their innocence. Eight years of refusing to allow the government to ignore an egregious injustice to be ignored resulted in a shameful error being corrected, but too late for Yusef Abdullahi. Despite his innocence being beyond question John Actie is still excluded from the scheme as is Colin Stagg, the original defendants in the Damilola Taylor Inquiry and the family of Phillip Skipper. Disgracefully, the family of victims of crime like Lynette White’s do not qualify either. Proved Innocent – Vindication highlights this affront to justice.

“As a victim of institutional racism I quickly saw the injustice of the case of the Cardiff Five and came to appreciate and admire the work that Satish Sekar put in on that case especially. He cared about all of the victims of that injustice and others too. Twenty years later he continues to fight for justice. His role in that case especially was pivotal – having worked not only to free the innocent, but to bring the guilty to justice. Even after making history in that respect he continues to fight on to bring the system that allowed so gross an injustice to book. There are forgotten or ignored victims of crime. My family has first-hand experience of that. I appreciated Satish’s often unseen efforts to help all of the victims. Sadly, the battle against injustice that brought us together remains to be won.”

Richard Adams (Father of Rolan Adams)

Just Tariffs – Protecting The Innocent is another of our most important projects. We are honoured to launch it here today. It highlights the incredible situation where the truly guilty get treated more leniently than the undeniably innocent for the same crime. Astonishingly this happened after the criminal justice system claimed to have taken into account the fact that such a killer had allowed innocent people to go to prison for his crime. The Law Commission and Ministry of Justice, among others refuse to accept that there is a problem.

“The case of the Cardiff Three, as it is best known, was a miscarriage of justice written in the starkest language. This was the story of three young men convicted of the 1988 murder of Lynette White in Cardiff who were freed on appeal in 1992. It is of particular significance because the real perpetrator of the murder, Jeffrey Gafoor, was finally traced through developments in DNA and, after attempting suicide, confessed to his crime, a crime made worse by the fact that he had allowed others to, as it were, serve his sentence for him. Such vindication, as Sekar explains in this book, is rare. More often, a shadow of suspicion lurks over the innocent man or woman, with unsubtle hints that some of them have ‘got away with murder.’

The Cardiff Three – sometimes called the Cardiff Five, because five men were arrested and charged although only three convicted – was and will remain one of the most crucial cases in the history of criminal justice in the United Kingdom and is worthy of detailed examination. It is not only for what went wrong at the time but for the many other issues it has thrown up in its wake.No-one is better suited to the task of explaining and unravelling the complexities of the story than Satish Sekar whose pioneering work has played a large part in our understanding of the murder and its ramifications. He has ploughed an often lonely furrow in pursuit of the story long after it had slipped from the front pages of the national press. Investigating such cases is a time-consuming and sometimes dangerous occupation.”

Duncan Campbell (Former Crime Correspondent of the Guardian)

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.