Lessons

The criminal justice system has never listened to Lloyd Paris – its loss. Lloyd shows dignity and decency even though those qualities are sadly lacking in the treatment he has received from it. His brother Tony was one of the victims of a now notorious miscarriage of justice. On Saint Valentine’s Day 1988 20-year-old Lynette White was murdered. It was a knife crime of exceptional brutality – a sexually motivated homicide. The case against his brother and four co-accused depended on a case scenario that Professor Dave Barclay described as “scientifically ludicrous”.

There were dire consequences for the Cardiff Five and their wider families. John and the late Ronnie Actie were acquitted in November 1990. Two years later Stephen Miller, the late Yusef Abdullahi and Tony Paris were freed on appeal, but the whispering campaign against them and subsequent damage continued for years. It ended, or should have in July 2003 when the Cardiff Five were vindicated by the conviction of Lynette White’s real killer.

Bad Form

There were many victims of this terrible case and further insults would occur. The Cardiff Five had lost a total of sixteen years between them for a crime Gafoor admitted he had committed on his own. More importantly, the crime-scene evidence, forensic pathology, forensic psychology, blood distribution patterns and DNA proved that Lynette had indeed been murdered by one person acting on their own and that man was Jeffrey Gafoor. Despite the serious aggravating circumstances, Gafoor receives a tariff – the minimum that he must serve before he becomes eligible to apply for parole – of just thirteen years. Amazingly, both Tony Paris and Yusef Abdullahi had received harsher tariffs for the same crime.

“Well it’s bad form to tell you the truth”, Lloyd Paris said. “You know the type of thing that man done, he should have done a lot more jail. I don’t know what the system’s coming to. They say it takes time for things to go round that slow, but it’s too slow. Everything is going too slow. It took all this time to get the police in court. It took the police all that time to get Gafoor. It’s silly. It really is silly”.

Max Hilll QC, then Vice President of Bar Association agreed that it would look odd to the public. “[Y]ou identify a need for precision in sentencing in miscarriage cases”, Hill said. “I’m happy to discuss that because clearly from a distance if as you tell me in the Lynette White case there was a sentence that was applied to those wrongly convicted, which was heavier than the person ultimately rightly convicted, to many people that would appear wrong and the question behind that may be, do you need to do something about tariff sentencing to ensure that doesn’t happen?”

(We will be answering this question in our forthcoming report Just Tariffs, and highlighting the problem in further articles).

The Western Mail’s Chief Reporter, Martin Shipton, believes that changes are required. “Well it suggests that there is something seriously wrong with the way in which tariffs are arrived at”, he said. “Now whether that is because there is insufficient guidance available to judges, whether the policy has changed over the intervening years, I’m not sure”. But Shipton is clear that there can be no excuses for innocent people receiving harsher tariffs than the innocent for the same crime, differences in when legal proceedings occurred, notwithstanding.

“Well it seems ludicrous that the tariff for the real killer is actually – ultimately – even when we are told that the fact that he allowed innocent people to go jail is taken into account is actually lower than the total amount of time that was spent in prison by the innocent people” [my emphasis].

Suspicions

Before police investigating the rape and murder of Nienke Kleiss and attempted murder of Maikel Willebrand ‘discovered’ Kees Borsboom as a suspect, they believed that Willebrand was lying. The children had been playing in Beatrix Park in Schiedam. They were viciously attacked by a man. Kleiss tried to fight back, but the ten-year-old girl was no match for a homicidal Wik Haalmeijer.

Nor was the eleven-year-old Willebrand. He played dead and waited for Haalmeijer to go. Eventually he did and Willebrand sought help, which he received from passing cyclist Kees Borsboom – the man who called the police. The police did not believe Willebrand. The survivor – the crucial witness – was treated as their prime suspect. They thought that he had been too smart by playing dead.

His account did not fit the case-scenario that they had developed – a ridiculous one – so they thought that he was the perpetrator. It was absurd on every level. Willebrand was a child. There was no evidence that he had attacked his friend and there was clear scientific evidence that proved that someone else had been involved.

It was even thought by police that his injuries were self-inflicted. But then a coincidence occurred. Police discovered that their star witness Borsboom had exposed himself to a child – the child of a police officer. They decided that could not be coincidence. He becomes their prime suspect, but it was exactly that – a coincidence – a wretched one at that.

Miracle

The survivor was to all intents and purposes a defence witness, but Willebrand was marginalised. The surviving victim and therefore a key witness did not support the case hypothesis. Rather than admit that the hypothesis was the nonsense that it was subsequently proved to be, the victim/witness was marginalised and Borsboom was convicted in nearby Rotterdam.

Borsboom subsequently lost his appeal, but this was not the end of the story. Despite the indisputable evidence of innocence, he could have maintained his innocence to his dying day without being believed. It required a miracle and unusually it got one.

Both he and Willebrand would be vindicated by it. Wik Haalmeijer was arrested for two unconnected rapes. He not only admitted to those offences, but confessed to the Schiedammer Park crimes and insisted on DNA tests to prove his guilt. Nothing would induce him to withdraw his request. The DNA testing proved his guilt and also Borsboom’s innocence.

Outrage

Before police investigating the June 22^nd 2000 rape and murder of ten-year-old Nienke Kleiss and attempted murder of her eleven-year-old friend Maikel Willebrand ‘discovered’ Kees Borsboom as a suspect, they believed that Willebrand was not only lying about the terrible events, but was also responsible for them. They thought that he his account of playing dead to survive did not and could not ring true.

The investigators could not understand how a brutal killer could fail to kill him after brutally murdering Kleiss and also how an eleven-year-old child could be that cool under such pressure to outsmart the killer, but that is exactly what Willebrand did. He knew that he could not fight off a fully grown and vicious Wik Haalmeijer. He did as he was told while being attacked and then played dead.

It saved his life as Haalmeijer, believing Willebrand was dead, attacked Kleiss. After satisfying his bestial urges he left the Beatrix Park in the town of Schiedam – near Rotterdam – and allowed an innocent man to be wrongly convicted. Dutch society was shocked to the core by these crimes, but insult would soon be added to terrible injury.

Shocking

Willebrand’s account did not fit the case-scenario that the police had developed – a ridiculous one. They could not believe that the perpetrator that Willebrand described could have been so careless as to leave a witness to tell the tale. They also thought that no child could think that quickly and rationally in such horrific conditions, so Willebrand had to be lying and if he was lying, then he had to be the perpetrator.

But that was absurd on every level. Willebrand was just eleven-years-old. There was no evidence that he was capable of such depravity and brutality or was anything other than a normal child, whose childhood was ruined by the Schiedammer Park attacks and wretched investigation of those crimes.

There was no evidence that he had attacked his friend and there was clear scientific evidence that proved that someone else had been involved, but that was not enough to persuade police that their ridiculous belief that Willebrand’s injuries were self-inflicted was wrong. That required another unfortunate coincidence. Police discovered that their star witness Borsboom had exposed himself to a child – the child of a police officer.

They decided that could not be coincidence, so he became their prime suspect – another tunnel had opened, which led investigators away from the real perpetrator, Wik Haalmeijer.

Unconscionable

The Dutch criminal justice has a good reputation abroad. Even activists, when told about the now notorious Lynette White Inquiry as the battle to free the Cardiff Three was nearing its conclusion in 1992, defended it. They said that it was impossible for justice to miscarry in the Netherlands as badly as it had in the Lynette White Inquiry for example.

Their outrage was limited to a peace activist who had been sentenced to two weeks imprisonment for daubing graffiti in an American base after breaking into it. They insisted that this was sentencing him twice for the same crime and they were outraged about it.

This, they insisted, was the worst miscarriage of justice in the Netherlands at that time. But they were wrong. The Dutch system was capable of miscarrying as badly as it had in Britain – worse even.

Vicious

On June 22^nd 2000 ten-year-old Nienke Kleiss was raped and murdered in Beatrix Park in the small town of Schiedam, which is within easy commuting distance of Rotterdam. She fought hard for her life and left vital clues to identify the perpetrator, but her efforts were wasted by police and the Dutch criminal justice system for four years as justice miscarried twice.

Her eleven-year-old friend, Maikel Willebrand, with whom she had been playing, was also viciously stabbed at the same time by Wik Haalmeijer. Willebrand survived by playing dead only to be absurdly accused of having inflicted the injuries on himself to cover up his crime – the attack on Kleiss. It was an utterly ludicrous allegation and an unconscionable way to treat a child who had been the victim of a vicious attack.

DNA testing would play a large part in this inquiry. It quickly proved that Willebrand had been telling the truth that he had been attacked himself and had played no part in the rape or murder of Kleiss, but police were still not prepared to listen to him at all.

They only moved on from Willebrand when they heard about a coincidence regarding the man who then became their new prime suspect Kees Borsboom – the man who had helped Willebrand after the crimes by reporting it to the police. And even then they would not accept Willebrand’s account because the boy would not turn on the man who had helped him.

Fanciful

DNA expert Richard Eikelenboom, then working for the Netherlands Forensic Institute (FSI) developed the DNA protocols that were used in the Schiedammer Park case. He knew that Low Template DNA had produced important results, quickly realising that both Willebrand and Borsboom had nothing to do with the crimes, but he was not the Reporting Officer and Ate Kloosterman’s report was very selective.

Kloosterman told the judge that the ‘foreign’ DNA results on Kleiss’ shoe and fingernails had been deposited by a child at her school. Unknown to the court there were compelling reasons to reject that explanation. Kleiss had been playing in water just before she was attacked and the surviving victim had told police that she had scratched her assailant – time would tell that she had.

The results on the shoe and elsewhere were also the same – it would have required an incredible coincidence for all of those alleles to have been deposited at various locations innocently, but Kloosterman knew the significance of the results well or should have done. It was obvious that they had been deposited by one person and not by Kleiss’ classmates. They had the DNA of the real perpetrator – enough to eliminate the entirely innocent Borsboom, but selective disclosure prevented that from happening.

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.

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.