Coded

For the last quarter of a century the Crown Prosecution Service (CPS) was supposed to have provided independent scrutiny on decisions over whether or not to prosecute. It had powers to discontinue prosecutions, which it has used, and it had guidelines that ought to have ensured that the Cardiff Five at least never stood trial.

Hywel Hughes was the Crown Prosecutor in this case. He took the decision to prosecute and did so in spite of the Code for Crown Prosecutors that provided guidance on whether the evidence was of sufficient quality to prosecute with a realistic prospect of conviction. Outrageously the CPS has tried to defend its decision to prosecute by pointing out that it secured convictions.

Culpable

Hughes was also responsible for deciding to prosecute the Newsagent’s Three (Michael O’Brien, Ellis Sherwood and Darren Hall) – another high profile Welsh miscarriage of justice¹ – despite over 100 breaches of PACE and other serious failings. Examination of that Code in the Lynette White Inquiry leaves no room for doubt that it was a prosecution that should never have been tolerated.

Securing convictions in a case now acknowledged, and actually obvious even at that time, to be a notorious miscarriage of justice must never be seen as a justification for a prosecution that plainly did not have credible evidence to justify proceedings. The CPS had a responsibility to halt this prosecution in its tracks and an ongoing discretion to stop the prosecution at any stage before wrongful convictions were secured amid a trail of devastated lives.

Pathetic

Instead, it failed to do so in a case where there is no credible doubt about innocence and acquiesced meekly when those charged with causing that miscarriage of justice stood trial and were allowed to claim that the Cardiff Five were in fact guilty when the evidence proved that they were not. The CPS failed to present the clearest possible evidence of their innocence adequately, despite having had this proof from a very credible source – a respected forensic scientist. That is shameful. The irony of this should not be lost.

Allowing the Cardiff Five to stand trial on evidence that would have been rejected as implausible had it been offered as a script to any policing drama is a failing that taints its claims of independence even now almost a quarter of a century later. It had the opportunity to consign the discredited Penderyn methods to history and failed to do so miserably.

Shameful

Its refusal to do its job adequately resulted in other miscarriages of justice that could have been prevented. The CPS must bear the ultimate responsibility for that. Had it refused to prosecute the Cardiff Five the police would have had a clear message – the Penderyn methods (see The Blame Game at http://fittedin.org/fittedin/?p=918) will no longer result in prosecution, let alone convictions.

That in turn would have meant that police would have been faced with a stark choice. They could cling to the outdated methods and hope for the best (worst really), or they could secretly fabricate evidence, telling nobody and hope to get away with it.

Alternatively, they could change their methods, relying on modern investigative techniques and advances in forensic science, resulting in more reliable evidence and a better chance of securing convictions that deservedly stick. Hughes’ failings and those of the CPS robbed society of an efficient and just criminal justice system almost 25 years ago. For that it must receive a large slice of the blame, but there are others deserving of condemnation too.