Disgraced

Disgraced expert witness Dr Michael Heath resigned as a Home Office pathologist two years ago. This followed a finding against him at the first Home Office Advisory Board tribunal into the competence of an experienced forensic pathologist, which led to a review of his involvement in several cases. But the then Attorney General chose not to conduct a thorough investigation of his previous cases and left it to the Criminal Cases Review Commission (CCRC).

This was unsatisfactory for a number of reasons: the review was conducted by a journalist who had become a Commissioner of the CCRC, David Jessel, rather than an experienced forensic pathologist or even a panel of such qualified experts and it did not look into cases that may have been wrongly classified by Heath as not being homicides.

This was the only examination of Heath’s work despite the finding against him, which includes by media. We find this disturbing because the full extent and consequences of errors made by Heath have not been subjected to adequate scrutiny – the tribunal only dealt with two cases: Kenneth Fraser and Steven Puaca – and Jessel’s review did not look into other proven examples of the poor quality of Heath’s work, claiming that it started from the belief that Heath was thoroughly discredited.

Unacceptable Standards

Although there is no doubt that Heath’s work was of an unacceptably low standard, such reviews do not and cannot redress the balance, because they ignore the possibility of similar fact errors that resemble other proven cases rather than Fraser or Puaca. It also completely ignored forensic pathology-related issues that could have helped to prove the innocence of people seeking to appeal. Such factors were not considered during the review or subsequently, and the failure to consider them could cause further delays in proving innocence.

“The Commission is considering the implications of the recent finding by the Home Office Advisory Board against Dr Michael Heath,” said Boris Worral, then Head of Communications at the CCRC. “This involves looking at the small number of current cases under review by the Commission as well as revisiting a number of previous applications in which Dr Heath features. A Commissioner, David Jessel, is co-ordinating the Commission’s response to this issue.”

In October 2006 the CCRC confirmed that eight cases – three under review at the time, and five previous cases – would be looked at again ‘in the light of the Home Office decision on Heath.’ However, the failure to stop Heath earlier is disturbing, as evidence of his shoddy work had been available and ignored for years.

Proven

Dr Heath took years to achieve membership of the Royal College of Pathologists because he repeatedly failed his exams. His work has been criticised by pathologists, lawyers or judges in at least eight cases other than those of Fraser and Puaca – the two that featured in the tribunal. Inquest verdicts were overturned: convictions were quashed and acquittals secured because courts could not have believed Heath’s evidence.

Some of these cases occurred over a decade ago, including that of Craig Kerwin. In 1997 Kerwin was acquitted of the March 1996 ‘murder’ of 73-year-old Jocelyn Strutt in Southborough, Kent – a ‘crime’ that two forensic pathologists and the trial judge insist did not occur. Forensic pathologists Nat Cary and Vesna Djurović strongly disputed Heath’s view that a blow had caused a myocardial infarct to rupture. Djurović’s opinion stated that “there was no pathological evidence whatsoever, to suggest that Mrs Strutt suffered a ‘heavy’ blunt impact to the chest.” Dr Cary agreed with Djurović’s findings.

Obfuscation

“The assumption that Dr Heath was assessed only on his actions in the Fraser and Puaca cases is untrue,” said Fiona Hickman the CCRC’s Corporate Affairs and Complaints Manager. “The CCRC is in a position to assess very many of Dr Heath’s cases, and it has done so on the very wide basis that his professional judgment has been called into question. It would be wrong, however to assume that every case in which Dr Heath had played any part – either as defence or prosecution expert – was for that reason unsafe.” But nobody had suggested that.

The CCRC was asked to clarify specifically whether the facts of these eight proven cases, which we named specifically, had been considered when deciding which of the fifty-four cases at the CCRC that Heath was involved in should be looked at again.

“We cannot make it any plainer that we reviewed all the Heath cases on the grounds that his expertise could not be relied on,” said Ms Hickman. “It would matter not if he had been found derelict in ten, twenty or a thousand cases. His expertise would still be equally unreliable. We are still at a loss to understand what point you are trying to make.”

We are at a loss to understand how they could miss the obvious point that we made so thoroughly and persistently. It should not have been difficult to understand and it should not have been difficult to confirm or deny that the review had considered those cases, but it steadfastly refused to do that and still hasn’t. If the CCRC had not looked into the specific facts of the eight proven cases that we mentioned, how could it possibly know whether the facts of applications that it was considering bore similarity to one of those eight cases rather than Fraser or Puaca and consequently, how could it be sure that a jury, properly directed, would have reached the same verdict if they had known that Heath had said the same thing previously and not been believed?

The CCRC should be aware that similar fact is a validated legal principle that can affect the credibility of a witness, but that discrediting a witness in another case means nothing if it cannot be shown that it affects a similar issue in the case under consideration. In other words the starting point of believing that Heath was thoroughly discredited means nothing if the complaint relates to an issue that he has not been discredited over in a proven case.

It cannot be plainer and it is not the first time that the CCRC has chosen to ignore the point that was being made in order to answer one that had not been. David Jessel’s review of the fifty-four cases involving Heath that had applied to the CCRC did not consider pathology-related issues. We are concerned by this and will demonstrate the flaws in this approach with reference to the case of Neil Sayers – a young man who has spent all of his twenties in prison for a crime that adequately conducted forensic pathology may have helped to prove he did not commit.

Timings

In the early hours of April 22^nd 1972 a police surgeon pronounced mixed-race transvestite Maxwell Confait dead. A fire had just been extinguished at the Doggett Road residence in Catford, South-East London. This would prove to be one of Britain’s most shameful miscarriages of justice. The victim was unsympathetic as far as investigators and even the public were concerned and there were obvious angles to look into.

Establishing the time of death was important and the fire helped to do that, as long as it was linked to the murder. It was investigated as if that was a fact, but it wasn’t. The forensic pathology – horribly botched as it was – should have made that clear from the beginning. Somehow, the significance of it was missed by everyone.

The time of death – admittedly a range – was given as earlier that night by the distinguished forensic pathologist James Cameron, who would later be severely criticised for his role in one of Australiaʼs most notorious miscarriages of justice Lindy and Michael Chamberlain – the Dingo Baby case.

At the trial in November 1972 Cameron moved it even further, saying it could have been as late as just half an hour before the fire was extinguished. This was necessary to explain the inexplicable. Why had brutal killers stayed around for hours and then started a fire there? And then knowing that they had done this why had they started some more in that area, knowing it would draw attention to themselves. This was the breakthrough information that led to the arrests and interrogative strategy.

But it was completely wrong. The fire had nothing to do with the murder. Professor Cameron’s original opinion was wrong. His change of opinion at the trial turned out to be even further wide of the mark than he had previously been. While timing death is not an exact science, especially over 40 years ago, Cameron did not check the organ for discolouration. If he had done so he would have realised that the fire had occurred over two days after Maxwell Confait was murdered – this was badly botched by Cameron to put it mildly.

Expert Errors

Cameron would prove to have eminent company in getting the time of this death badly wrong. Professor Donald Teare was one Britainʼs most eminent forensic pathologists at the time and so was Professor Keith Simpson. Both were very experienced and had distinguished themselves in their chosen field, but they too were involved in an investigation of a miscarriage of justice – one of the most notorious miscarriages of justice in any jurisdiction – Timothy Evans – another vindication case¹. Evans was wrongfully convicted and hanged in 1950².

Teare was the main pathologist in that case, which became a cause célèbre three years later when a resident at the same address, John Christie was exposed as a depraved serial killer rather than the respectable witness he had been portrayed as at Evansʼ trial.His colleagues Francis Camps and Keith Simpson were also involved, but Teareʼs role was the most controversial and despite his attempts to put right the Confait case, his error – also made by Simpson and Cameron – was crass for experts of such standing.

Inconvenient Evidence

The case of the Catford Three (Colin Lattimore, Ronald Leighton and Ahmet Salih) is now acknowledged as of Britain’s pivotal miscarriages of justice – one that changed the criminal justice system. Their alibis – Lattimoreʼs was particularly strong – were treated as little more than an inconvenience to be overcome and this appears to explain the forensic pathologist Professor James Cameronʼs sudden change of opinion regarding the time of death.

Outrageously, Cameron waited until the trial was under-way to inform the defence during his evidence that he had changed his mind. Lattimoreʼs lawyers had prepared their defence of alibi on what they had been informed was the time of death that the police and prosecution were relying on. It was all they could do.

Ambush

They had no time to prepare for this change in the prosecution case or even get expert opinion to counter it. They were ambushed by Cameronʼs shifting of the goalposts at trial. It was outrageous and the judge should not have allowed it and nor should the Court of Appeal. Twenty years later the Court of Appeal famously said that it does not allow convictions secured by ambush in the shameful case of Judith Ward.

In its way this was worse as it was not even concealed – it was brazen. The court actually witnessed the ambush in progress and not only tolerated it, but rewarded it with the prize the prosecution sought. After an 18 day trial in November 1972 Lattimore was convicted of manslaughter due to diminished responsibility and Leighton of murder – Salih of the offences he confessed to. Lattimore and Leighton were convicted of the other offences as well.

Outrageous

In November 1972 the three youngsters began their sentences. There was no indication that this would become one of the most important and notorious miscarriages of justice in British history – one that would command two major enquiries and usher in pivotal changes in the law, but there should have been. Cameronʼs shifting of the goalposts on the time of death was outrageous. It destroyed the alibi work the defence had conducted.

It was obvious that Cameron had not changed his mind by such a considerable amount of time when he gave evidence, so when had he come to that conclusion and why? There was another obvious problem with the previous time of death – the fire evidence. If the original time of death was correct it meant that the murderers had stayed around for almost three hours and then set the fire. Why would anyone do that?

Fair Trial?

Changing the time of death neatly avoided that question and avoided the obvious conclusion – the fire had nothing to do with the murder of Maxwell Confait whatsoever. Cameronʼs conduct had rendered a fair trial impossible. The trial should have been stopped immediately and the issue resolved before any retrial occurred. It did not. The fact that this was allowed to happen to children – treated as adults by the law – makes it even more unconscionable.

The Judgeʼs Rules were amended on the treatment of child suspects and on the vulnerable – then termed ʻeducationally sub-normalʼ, but nothing was done about Cameron’s late change of opinion. The Police And Criminal Evidence Act was a direct response to this case and the Prosecution of Offences Act facilitated the establishing of the Crown Prosecution Service as a result of the Royal Commission on Criminal Procedures as well.

Shamefully, nothing was done to prevent expert prosecution witnesses ambushing children or even adults at trial. Lord Justice James, delivered the decision of the Court of Appeal in July 1973. It proved to be yet another wretched judgement betraying the arrogance and complacency of a system that believed itself infallible.

“There was no misdirection in the summing-up to the jury and no representation of facts which can be relied upon as justifying the grant of leave to appeal”, said James, regarding Mr Justice Chapmanʼs summing up, but before long it would emerge that there were certainly facts that could justify not only granting leave to appeal, but quashing the convictions which had been secured by contemptible means.

Damage Limitation

The Police Corruption Trial of the Century ended in farce on December 1^st 2011 – a nine year investigative process had resulted in convictions of three vulnerable witnesses and no others. The Crown Prosecution Service (CPS), prosecutor Nicholas Dean QC and defence lawyers – police even – all accepted that they had been forced to lie (see Duress and The Lawʼs An Ass). Nevertheless, the law did not recognise the duress that they had suffered.

Mark Grommek, Angela Psaila and Learnne Vilday therefore had no choice but to plead guilty to perjuring themselves.¹ Having done so, they were treated leniently due to the bullying they had endured by police officers who had in the words of the judge used methods that were “unacceptable in a civilised society”.

The New Cardiff Three were sentenced to 18 months imprisonment. By March 2009 the CPS announced that 13 police officers (some of whom had retired) had been charged with a variety of offences including conspiracy to pervert the course of justice and perjury. Two witnesses also faced those charges. They had no intention of going down meekly. However, this would prove to be a poorly prepared prosecution marred by penny-pinching foolishness that would ultimately cost the public millions more and deprive us all of the accountability and answers we have waited years to discover.

The Judge

Despite the seriousness of the case it was destined to be heard in Swansea before Mr Justice (Sir Nigel) Sweeney. The judge had been involved in prosecuting a notorious crime – the Chillenden attack on the Russell family which left Lin Russell and her daughter Megan and dog Lucy dead and Josie Russell fighting for her life.

Sweeney knew that the Crownʼs pathologist – albeit subsequently discredited – suggested that there had been significant contact between the killer and a bootlace used to strangle the unfortunate Megan. There was no disputing that the contact was substantial and that the killerʼs DNA would have been on the lace, but Sweeney knew that Michael Stoneʼs DNA was not on that boot-lace. This was strong evidence of innocence, but a fanciful explanation was advanced and Stoneʼs defence accepted the Crownʼs willingness to stipulate that Stoneʼs DNA and fingerprints had not been discovered at the crime-scene.

The Crown claimed that Stone – a habitual drugs-user – had obtained the lace from another user and had used it to restrain Megan. Somehow despite putting substantial pressure through the lace onto his fingers he had not deposited his own DNA while both Meganʼs and the unknown drug-user he had allegedly obtained the lace from remained on it, or at least alleles (bands in the DNA testing system used did).

It was obvious that the far more probable explanation of the unidentified male DNA at the relevant points on the lace was that it had been shed by the killer. It was yet another example of a convenient interpretation of the DNA results – one that stretched credibility and most probably contributed to an egregious miscarriage of justice. Sweeney was either aware of the fanciful nature of the explanation that he relied on, or he should have been.

Precedent Ignored

Stone was convicted again in September 2001 and subsequently lost an appeal. An application to the Criminal Cases Review Commission (CCRC) failed to present the compelling scientific evidence of innocence. He remains in prison for very serious crimes that he did not commit in circumstances where strong evidence supporting his claims of innocence has never been heard by any court or even the CCRC.

By this time a very significant miscarriage of justice – a Dutch vindication case had thoroughly unravelled. The Schiedammer Parkmoord has been covered in considerable detail by us (see the various articles on that case). Astonishingly the significance and potential of that case remains largely ignored by supporters of Stone, lawyers and media all professing to champion his innocence even though the methods used in that case to prove the innocence of Kees Borsboom are plainly apt in Stoneʼs case.

Shamefully, the scope to prove him innocent remains ignored while an almost certainly innocent man languishes in prison while an expert who has first hand experience of the issues involved is denied the opportunity to test his claims of innocence. Sweeneyʼs role in securing this miscarriage of justice has never been subjected to public scrutiny. Over a decade later no media apart from us even mentions it, let alone investigates it.

Damage Limitation

The Police Corruption Trial of the Century ended in farce on December 1^st 2011 – a nine year investigative process had resulted in convictions of three vulnerable witnesses and no others. The Crown Prosecution Service (CPS), prosecutor Nicholas Dean QC and defence lawyers – police even – all accepted that they had been forced to lie (see Duress and The Lawʼs An Ass). Nevertheless, the law did not recognise the duress that they had suffered.

Mark Grommek, Angela Psaila and Learnne Vilday therefore had no choice but to plead guilty to perjuring themselves.¹ Having done so, they were treated leniently due to the bullying they had endured by police officers who had in the words of the judge used methods that were “unacceptable in a civilised society”.

The New Cardiff Three were sentenced to 18 months imprisonment. By March 2009 the CPS announced that 13 police officers (some of whom had retired) had been charged with a variety of offences including conspiracy to pervert the course of justice and perjury. Two witnesses also faced those charges. They had no intention of going down meekly. However, this would prove to be a poorly prepared prosecution marred by penny-pinching foolishness that would ultimately cost the public millions more and deprive us all of the accountability and answers we have waited years to discover.

The Judge

Despite the seriousness of the case it was destined to be heard in Swansea before Mr Justice (Sir Nigel) Sweeney. The judge had been involved in prosecuting a notorious crime – the Chillenden attack on the Russell family which left Lin Russell and her daughter Megan and dog Lucy dead and Josie Russell fighting for her life.

Sweeney knew that the Crownʼs pathologist – albeit subsequently discredited – suggested that there had been significant contact between the killer and a bootlace used to strangle the unfortunate Megan. There was no disputing that the contact was substantial and that the killerʼs DNA would have been on the lace, but Sweeney knew that Michael Stoneʼs DNA was not on that boot-lace. This was strong evidence of innocence, but a fanciful explanation was advanced and Stoneʼs defence accepted the Crownʼs willingness to stipulate that Stoneʼs DNA and fingerprints had not been discovered at the crime-scene.

The Crown claimed that Stone – a habitual drugs-user – had obtained the lace from another user and had used it to restrain Megan. Somehow despite putting substantial pressure through the lace onto his fingers he had not deposited his own DNA while both Meganʼs and the unknown drug-user he had allegedly obtained the lace from remained on it, or at least alleles (bands in the DNA testing system used did).

It was obvious that the far more probable explanation of the unidentified male DNA at the relevant points on the lace was that it had been shed by the killer. It was yet another example of a convenient interpretation of the DNA results – one that stretched credibility and most probably contributed to an egregious miscarriage of justice. Sweeney was either aware of the fanciful nature of the explanation that he relied on, or he should have been.

Precedent Ignored

Stone was convicted again in September 2001 and subsequently lost an appeal. An application to the Criminal Cases Review Commission (CCRC) failed to present the compelling scientific evidence of innocence. He remains in prison for very serious crimes that he did not commit in circumstances where strong evidence supporting his claims of innocence has never been heard by any court or even the CCRC.

By this time a very significant miscarriage of justice – a Dutch vindication case had thoroughly unravelled. The Schiedammer Parkmoord has been covered in considerable detail by us (see the various articles on that case). Astonishingly the significance and potential of that case remains largely ignored by supporters of Stone, lawyers and media all professing to champion his innocence even though the methods used in that case to prove the innocence of Kees Borsboom are plainly apt in Stoneʼs case.

Shamefully, the scope to prove him innocent remains ignored while an almost certainly innocent man languishes in prison while an expert who has first hand experience of the issues involved is denied the opportunity to test his claims of innocence. Sweeneyʼs role in securing this miscarriage of justice has never been subjected to public scrutiny. Over a decade later no media apart from us even mentions it, let alone investigates it.