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.

Stefan Kiszko was vindicated over a decade after his death by the conviction of the real killer of Lesley Molseed, Ronald Castree, but there are others who will never be vindicated. For them exoneration is as good as it gets, but they have to live with petty whispering campaigns questioning their innocence.

Hensley Wiltshire died in controversial circumstances in January 1989. Wrongly held in custody and denied the medical attention he needed Wiltshire deteriorated to the point of collapse. He had visited hospital twice in the night of January 5th-6th. The record of his injuries makes interesting reading. Significant injuries were discovered at the post-mortem examination that were not detected on either previous visit to hospital.

The discrepancy was never adequately explained. It was plain that either Tony Poole and/or Gary Mills had inflicted those injuries or Wiltshire had suffered a beating in the cells of Gloucester Police Station. The medical evidence was never properly resolved and nor was the issue of consent to be treated, but there were other causes concern that contributed to a terrible miscarriage of justice.

Inappropriate

Mills and Poole always instead that Mills had defended himself from three attacks by Wiltshire and that Poole was not involved. Neville Juke had been present throughout the incident in Poole’s Conduit Street flat. He was, as the jury recognised, an important witness, but the jury never heard from him.

Juke had been warned off attending the committal hearing. He had been threatened with arrest if he came. Juke recorded part of that conversation – one that then Detective Inspector Trevor Gladding lied about at their trial in 1990. Amazingly, Mills and Poole’s defence had that tape and therefore knew that Gladding had lied to the jury, but a well-respected QC didn’t play it to the jury.

Ian Macdonald QC believed that he would have had to call Juke to verify the tape. In fact he didnʼt. The now discredited Police Complaints Authority (PCA) proved that Gladding was the officer on the tape easily by comparing that recording to known examples of Gladdingʼs voice from interviews that he had conducted.

Had the jury heard that tape it would surely have destroyed Gladding’s credibility and shown the prosecution in a very poor light. And this error came from a very experienced and competent QC.

Permitting Perjury

But Gladdingʼs conduct was far from the only example of inappropriate conduct by police in that investigation that went unchallenged at trial. In time disclosure obligations changed and a pattern of misconduct emerged. A crucial witness claimed to have seen into the flat while Wiltshire was allegedly been attacked and heard Wiltshire say ʼNo, Tony, no!ʼ above the sound of a sound-system at full volume.

Unknown to defence lawyers police officers knew that the witness, Paul White, had lied. In fact, they knowingly allowed him to claim that he had gone there on his own in his statement when he had told them previously that he had gone there with another man who did not verify what White claimed to have seen and heard.

Integrity

It also emerged that Gladding and a colleague who later rose to the rank of Superintendent, John Jeynes, had misrepresented the content of Jukeʼs second statement to police. This had the effect of deceiving Mills and his defence lawyers into thinking that Juke did not support his claim of self-defence.

Having been bluffed in this manner not to call Juke, it took 14 years to acknowledge that the investigation lacked the integrity required to be the basis of safe convictions. It should never have taken so long. Neither Mills nor Poole received the extent of help and support that they needed to rebuild their lives, despite the existence of a government-supported scheme to assist victims of miscarriages of justice like them. Gary Mills sadly passed away on December 10^th 2012.

Exoneration and Vindication

Exoneration on appeal or acquittal at trial is where most miscarriage of justice cases are left – exoneration without acceptance of innocence. Unlike most I refused to stop investigating, believing that it was possible to resolve this case fully by finding the real killer.

The Cardiff Five were innocent, but Lynette White remained as robbed of justice as she had ever been and her family and society too were horribly cheated. This was and remains the difference-making miscarriage of justice in Britain, but only because it was possible to find the real killer and vindicate the originally accused, proving their innocence beyond doubt and that in turn would open the door to real change and not just for them.¹

Vindication of the Cardiff Five was essential. It began the process of acknowledging what had gone wrong and possibly redressing it. Outrageously the police were allowed to dictate the terms of establishing what went wrong – a process that ultimately failed miserably and created new victims in the process.

Historic

In July 2003 Jeffrey Gafoor became the first murderer in British history to plead guilty to a murder that had previously resulted in a miscarriage of justice. Like South Wales Police, he apologised to both Lynette’s family and the Cardiff Five.

To their eternal shame no other individual or organisation involved in the miscarrying of justice in this scandalous injustice has apologised, let alone taken responsibility for their roles in it. But justice requires more than apologies – far more – and it should not depend on vindication, which occurs too rarely.

Facilitation or Acquiescence

I have been involved in miscarriage of justice work for over two decades. The role of the criminal justice system in facilitating or at least acquiescing in miscarriages of justice can no longer be ignored. The Cardiff Five have been vindicated and it was a rare case where the poor performance of a lawyer – it ought to have been plural – was acknowledged, but several others have never been accepted.

For example, the tragic case of Stefan Kiszko was one where the performance of his QC disgraced every concept of justice. There is no doubt that Kiszko was innocent. He was accused of the murder of a child and dealt with severely by other prisoners unaware of his vulnerability and of comprehensive proof of his innocence.

Kiszko was vindicated 32 years after the appalling murder of eleven-year-old Lesley Molseed, but it was far too late. Kisko was long dead, but evidence of his innocence had been known for many years by then. It should have prevented his wrongful conviction and the scandalous theft of his life by an an incompetent system that failed to ensure that proof of his innocence was clearly presented to the jury.

Outrageous

His defence QC, later to become Home Secretary, Leader of the House of Lords and Governor of Bermuda, Baron David Waddington, made significant and outrageous errors of judgement. Despite being bombarded with masses of unused papers at the opening of Kiszko’s trial, Waddington did not seek an adjournment to go through it.

Waddington pursued a defence of diminished responsibility despite Kiszko refusing to authorise it. But the worst error of all proved Kiszko’s innocence beyond doubt and later the guilt of Ronald Castree. The murderer had deposited his semen on Molseed’s clothing. It did not match Kiszko and was later proved to have been deposited by Castree.

Even at his trial it was obvious that the semen proved Kiszko innocent. The former tax-clerk could not produce semen. The failure to present this evidence of innocence disgraces every concept of justice and Kiszko’s then defence lawyers failed him and society miserably.

This was a truly appalling miscarriage of justice – one of Britain’s worst ever – compounded by the fact that Kiszko died aged just 41 in December 1993, having been released after 17 years wrongful imprisonment the previous year. He never recovered from his ordeal – an entirely preventable one.

But it should not require vindication to learn the lessons of cases like this and there are others which will almost certainly never end in vindication. What about them?

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.