by Satish Sekar © Satish Sekar (June 1st 2011)

Lectures

If we intend to keep handing out lectures on human rights to other governments, then we have to address our own failings. There are seven vindication cases in Britain in the DNA age. Two of them occurred in London, one in Hampshire, another in West Yorkshire, one near the border between Buckinghamshire and Hertfordshire and the other two were in Wales.

For legal reasons the Welsh ones could not be detailed[2] – there were trials in progress in both cases. John Pope had won an appeal, which led to a retrial in Newport before Mr Justice Roderick Evans. I covered that trial. The other trial was the Lynette White Inquiry Police Corruption Trial.

Both Phillip Skipper and the Cardiff Five had been vindicated, but were still facing unwarranted accusations. Nevertheless, the effects still need to be addressed in all vindication cases.

Shameful

Stefan Kiszko is dead and so is his remarkable mother, Charlotte. Both went to their graves without receiving assistance to rebuild their lives or even compensation. By todayʼs provisions, Kiszko was entitled to both, but he was long dead.

He lost over sixteen years of his life for a crime he did not commit and it was patently obvious early in the Lesley Molseed Inquiry that Kiszko was innocent. He could not produce semen, but that was on her clothing and was therefore an early and important clue.

The late Jack Dibb was charged over the Kiszko case as was his then subordinate Dick Holland and a forensic scientist Ronald Outteridge. The charges were dropped by a magistrate after Dibbʼs death. Years later a hit on the National DNA Database resulted in the identification of Ronald Castree as the prime suspect.

Thirty-two years after Molseed was murdered Castree was convicted. He still protests his innocence, but the real victim of the miscarriage of justice is Kiszko. He was wrongly labelled a pervert for exposing himself to school-girls. It later emerged that this was the justification for suspecting him in the first place, but that accusation was false too.

Years later, with Kiszkoʼs life ruined, the girls admitted that they had lied about him for a laugh! This illustrates the dangers of relying on the uncorroborated claims of immature people. The wheels of justice began turning at break-neck speed as a result of that and the subsequent obsession with Kiszko.

Appalling

Kiszko was failed disgracefully by the criminal justice system. His defence layers knew about the semen issue, but failed to present evidence at his trial that would have cleared him beyond doubt. The consequences were dreadful. He was attacked in prison and damaged irreparably by his ordeal. He never recovered and never saw Castree brought to justice.

While his defence lawyers at trial must take the lionʼs share of the blame and deservedly too, the rest of the criminal justice is not blameless either. The evidence against Kiszko was hopeless.

He was a vulnerable man coerced by inadequate interviewing methods into confessing to a crime he did not commit. Progress has been made in this respect. Confessions, especially from such vulnerable people, are not treated as the Holy Grail they once were.

Such advances are signs of an integrated approach to evidence having been developed, but too late for Kiszko. If the scientific evidence had been handled in a competent manner, the truth could have emerged in time to prevent that tragedy occurring.

Sadly it is too late to do anything for Kiszko or his mother, but his experiences must be recalled with disgust and a determination to learn from them. Nothing resembling this must ever be allowed to happen again.

Investigative methods must be fully integrated with advances in science and also current forensic science techniques. Rules of evidence must be adapted too. For evidence of innocence to be available early in this process, yet take sixteen years to emerge, while an innocent manʼs life was destroyed, is utterly unacceptable.

Post-Conviction Relief

Sean Hodgson, at least is still alive and eligible for both compensation and the inadequate after-care provided by the government through the Miscarriages of Justice Support Service (MJSS),[3] a misnomer if ever there was one. Hodgson served nearly three decades in prison for the rape and murder of Teresa di Simone. David Lace was the real perpetrator. His post-conviction confession was found to be unreliable, yet discrepancies in Hodgsonʼs account and the lack of scientific evidence were discounted. His new lawyers were told that samples to test no longer existed, but eventually testable material was located and Hodgson was cleared. Vindication followed soon, as Laceʼs confession was tested against scientific evidence. His guilt was proved, but Lace was long dead. Hodgson qualifies for assistance from the MJSS and is eligible for compensation too. Of seven vindication cases in Britain, Hodgson alone is eligible for both and alive to claim it.

Britainʼs Supreme Court recently produced a definition of a miscarriage of justice with reference to a compensation claim by Andrew Adams, but regardless of it, many victims of miscarriages of justice including the vindicated remain excluded from eligibility for compensation and after-care too.[4] There is no doubt that Colin Stagg is and always was completely innocent of any involvement in the murder of Rachel Nickell. It is hard to find a more blinkered investigation than that one. The honey-trap was more in keeping with Cold War intrigue than legitimate investigation of crime, yet it was attempted. It was quite rightly thrown out by Mr Justice (Sir Harry) Ognall in 1994 after Stagg had been in prison on remand for the best part of a year.

Stagg emerged to a vitriolic whispering campaign, fuelled among others by disgruntled police officers who felt aggrieved that the evidence they had gathered was not accepted. The honey-trap officer, referred to as Lizzie James, was compensated before Stagg after it affected her career – she left the police and country too over it. There never was any credible evidence against Stagg; it had to be generated through those unethical methods. It also helped to end the career of Paul Britton; he deserved nothing less. Despite his efforts to distance himself from the scandal, he is not a victim in this and nor are the officers who allowed that honey-trap to proceed and nor is the CPS either.

An integrated approach to crime investigation could have prevented the whole fiasco from happening. Stagg was not a likely killer. There was nothing in his criminal record or character traits that justified suspecting him at all and there was no scientific evidence against him either. Meanwhile, the real killer, Robert Napper, should have emerged as a suspect far earlier and at least two lives could have been saved if a rape allegation had been investigated competently. DNA testing eventually resolved the case beyond doubt by conclusively linking Napper to Nickellʼs murder, but this was a catalogue of errors in both investigations and that continued after resolution too.

Stagg has been paid substantial compensation and rightly so, but were the same thing to happen now, he would not be eligible. That is shameful, but it is in some ways worse that he does not qualify for assistance to rebuild his life. Any definition of a miscarriage of justice that does not include Colin Stagg, is an affront to common sense and justice too and any scheme to assist victims of miscarriages of justice to recover from their ordeal that does not help him is a disgrace. But it does not stop there.

In 2006 four young men should have received an apology from the Commissioner of the Metropolitan Police. A crass error by forensic scientist Sian Hedges was discovered during a review of the Damilola Taylor Inquiry. Original suspects Ricky and Danny Preddie had been eliminated due in part to the absence of blood evidence on their property. It later emerged that a training shoe belonging to Danny had clear traces of blood on it – the photograph proved it.[5] The blood was DNA tested and found to have been shed by Taylor. Fibre evidence also linked them to the 10 year-oldʼs death. The Preddie brothers changed their account of their movements as a result, but were convicted of manslaughter in August 2006.

Four years earlier four boys were acquitted by judge or jury. The case against them was a travesty. A witness referred to in court as Bromley was utterly unreliable to put it mildly, but there were other signs that something was badly wrong as well. A trawl of Feltham Young Offenders Institute produced so called evidence, some of which came from witnesses of the lowest possible order. Instead of helping those boys to rebuild their lives – one of them has been deported as a crime risk – they have been left to fend for themselves and are denied even an expression of regret, let alone apology. The effect the wrongful accusation of murdering Damilola has had on his life and subsequent conduct has not been considered on that decision or on the future. He is an adult now, living in the Democratic Republic of Congo, a country that is far from stable and to which he has little or no connection to any more, as he left it aged nine.

[1] An indication of the importance of an integrated approach can be seen in Equality of Arms, at http://fittedin.org/fittedin/?p=690  for more on this case and others too.

[2] This article was part of a presentation made at a conference to medical practitioners, which included forensic    pathologists, in 2011. At the time two trials were taking place – the Lynette White Police Inquiry Police Corruption Trial and the retrial of John Pope for the murder of Karen Skipper. Both of these re vindication cases and ones that FIP has taken an interest in. Pope was subsequently convicted. The Police Corruption Trial was halted on the orders of the judge, following serious failures by the prosecution. This is ironic as the CPS imposed conditions on others, especially myself and Fitted-In while displaying extremely shoddy standards itself, which should have led to serious consequences for it. This is one of the reasons we still demand a Truth and Justice Commission into the whole of this case, rather than the deeply flawed processes that have occurred so far.

[3] Hodgson died in October 2012, aged 61.

[4] The sadly defunct Fitted-In Journal covered this issue in A Deafening Silence. Regrettably other media, including the Guardian and New Statesman, insist on ignoring this scandal, while claiming that it is the type of story that is important to them. We will republish it soon.

[5] See The Partial Truth Truth – Errors of Judgement at http://fittedin.org/fittedin/?p=743 for our coverage of this issue.

The prosecution team in the Lynette White murder trial included two Queens Counsels, led by David Elfer. The other became Mr Justice Roderick Evans. Elfer failed to understand Stephen Miller’s vulnerability and used a confession that was false, ludicrous and unlawfully obtained. He relied on obviously unreliable witnesses and presented a case to the jury that should never have come to trial.

Both he and the CPS must have known that the statements of one of Yusef Abdullahiʼs alibi witnesses supported his claims that he had been working on a ship in Barry Docks on the night of the murder. Despite that knowledge they not only bluffed the defence into not calling vital alibi witness Brynley Samuel, but gave the jury the false impression that Samuel didnʼt help Abdullahi.

Judicial Responsibilities

The trial judges bear responsibility too. The late Sir David McNeill plainly had a standard on oppression that Lord Taylor strongly disagreed with – one that was open to shocking abuse. It set a standard that would have allowed police to find the weakest person and bully them into accepting what they wanted to hear. Even now some believe that there was nothing wrong with the way that Miler was questioned.

Taylor, sitting with a then Mr Justice (Sir John) Laws and Mr Justice (Sir Oliver) Popplewell, were ‘horrified’ by the methods that McNeill found admissible, but they too failed to resolve a vital issue. McNeill was wrong in law and that fact should have been acknowledged by the appeal judges. Had McNeill ruled on the confession as he should have done, the miscarriage of justice would probably not have occurred and the terrible error of not arguing that Miller had been bullied would likely not have happened in the second trial.

Severance

Even the next trial judge Mr Justice (Sir John) Leonard cannot escape censure. A few well-chosen words from judge to jury that Leonard thought would dispel the prejudice from refusing to sever Miller’s trial from that of his co-defendants who did not confess – a recurring theme in miscarriage of justice cases – were ignored by the jury. The same thing had happened in another South Wales case where Leonard was the trial judge less than five years earlier.

That too was later recognised as an awful miscarriage of justice – the Darvell brothers (Paul and Wayne). The murder of Sandra Phillips remains unsolved. Leonard should have been criticised by the Court of Appeal judges for his failure to sever these trials – in practice the only way to ensure that the trials of defendants who did not confess were not prejudiced by the admissions of those who did.

It must now be clear – it should have been at the time – that juries rely on confessions. They cannot believe that people confess to crimes they did not commit, especially for such a meagre reward as an end to the interrogations when that means sacrificing their long term interests and freedom, possibly for a very long time, but they do.

A Wretched History

The history of false confessions contributing to wrongful convictions is a long and wretched one that has continued to occur despite PACE. Understanding of the causes of these confessions and extent of vulnerabilities has undoubtedly improved, but defence lawyers cannot be immune from this process.

Millerʼs original lawyers had no idea or understanding of the extent of his vulnerabilities and need for robust support. The result was an egregious and entirely preventable miscarriage of justice, not just against Miller, but his co-accused too.

Inadmissible

The jury should have been protected from relying on inadmissible evidence like that, but it must be obvious that juries tend to believe confessions, however absurd, in these cases, especially without receiving the proper context of why innocent people confess to crimes they did not commit and on occasion implicate other innocent people. They too were not criticised by the appeal judges.

Those judges couldn’t wait to quash the convictions of the Cardiff Three, but in their rush to do so they failed to allow grounds to be developed that years later were at the heart of the recently failed trial of the former police officers and witnesses. Had those grounds been developed in 1992 as they should have been, safeguards that could have helped to prevent other miscarriages of justice would have been established.

Damage Limitation

The Court of Appeal refused to apologise and despite its strengths on the one area it considered in depth, the judgement that freed the Cardiff Three left them vulnerable to an unjustified and unjustifiable whispering campaign. That disgraces the criminal justice system.

It was in fact little more than a damage limitation exercise. However the attempt to force the lid shut on a can of worms, the like of which South Wales had never seen before, ultimately failed. The final reckoning and damage to both the force and criminal justice system proved far worse than if they had grasped the nettle two decades ago. There is a lesson in that.

The Cardiff Five are no more innocent now than they were when wrongly arrested and charged. They should never have gone through the ordeal that the state gave them no option but to endure and nor should Lynetteʼs family or indeed the people of South Wales. It should not have required finding the real killer to prove innocence and facilitate an investigation into what went wrong.