Not Worthy

Neil Sayers’ case was one of those that were not deemed worthy of further investigation by the CCRC. The disgraced forensic pathologist Dr Michael Heath was the Crown’s expert against him. Despite their conclusions there are important causes for concern over Heath’s involvement in Sayers’ case that the Criminal Cases Review Commission (CCRC) did not consider in David Jessel’s review.

In April 1999 Sayers was convicted with Graham Wallis of the May 1998 murder of his friend Russell Crookes. Wallis pleaded guilty, but blamed Sayers for the murder. Leading solicitor Steven Bird represents Sayers now and the CCRC informed him that the review of Heath’s cases had special regard for cases in which medical evidence was critical to the conviction, which did not apply to Sayers’ case and that Sayers’ previous application to the CCRC only argued that there was no forensic evidence linking him to the crime itself and that consequently the CCRC thought that any challenge to Heath’s evidence in Sayers’ case would be incorrect.

Disputed

“My son is innocent,” said Richard Sayers, “but he has remained in prison for almost nine years, maintaining his innocence throughout that time. The CCRC has said that they had special regard for cases where medical evidence was critical to the conviction. Neil’s case does not fit that criterion, but there are still issues that deserve to be investigated.”

Dr Heath took maggot samples from the body, but those maggots were not examined for five years. It remains unclear if Heath even advised police to consult an experienced forensic entomologist. The maggots represented the best possibility of establishing when death occurred – a vital issue in the case. Dr Heath also implied that the partial burning of the body was the result of an intense fire. Intense compared to what? There is considerable evidence to suggest that this was not an intense fire and that Heath’s conclusions led to errors in the interpretation of fire-related evidence, which was another issue of vital importance in this case. Heath’s role in these aspects of Sayers’ case was never considered in the review.

Sayers’ mother Angela shared her husband’s concerns. “We strongly believe that more extensive investigation of the pathology-related issues could discredit Wallis’ claims,” says Mrs Sayers. “By not looking into all of those issues in my son’s case, the CCRC are causing innocent people like my Neil, to remain behind bars when thorough investigation of these issues could prove his innocence and this may have happened in other cases as well.”

A previous application to the CCRC by solicitors who no longer act for Sayers failed to highlight scientific issues that legal experts say are at the heart of Sayers’ case. “It has been explained to us by experts that the scientific issues in Neil Sayers’ case have not been investigated as they could and should have been,” said Trevor Vallens, Vice-Chair of Kent Against Injustice (KAI), a campaigning group that supports the families of prisoners protesting their innocence.

Interest

His case has also attracted the interest of Dr Michael Naughton, a lecturer at Bristol University who founded the Innocence Network UK and the first innocence project in the UK. “If the complaints made by Neil Sayers’ parents are correct, it seems that the CCRC may have been premature in its decision not to investigate Dr Heath’s involvement in Sayers’ case more fully,” said Dr Naughton. “If the CCRC truly wanted to act in the interests of justice, a wider interrogation of other available scientific evidence would have been appropriate before reaching its conclusions.”

KAI has supported Sayers’ family for several years. “As a result of what the experts have told us, we believe that Dr Heath’s conduct effectively prevented Neil from proving his innocence, because it prevented adequate use of other scientific techniques that may have provided vital evidence for him,” said Mr Vallens, but Sayers’ case is not the only case involving Heath that KAI campaigns about.

It also supports Michael Stone who was convicted of the 1996 murders of Lyn and Megan Russell and the attempted murder of Josie Russell. Stone has always protested his innocence. His case arrived at the CCRC just as the Heath investigation was winding down. It was wrongly reported in some media that it would be one of the cases to be investigated further.

“The case against Mick has collapsed,” said Stone’s sister, Barbara, “but even if the CCRC had considered his case in their review of Heath, it would have been rejected because Heath’s evidence against him was not critical. However, if it can be relied on that would support our belief that his DNA should have been found on the bootlace if he was guilty.”

Stone’s DNA has not been found on any items from the crime scene and nor have his fingerprints, yet both DNA profiles and fingerprints have been discovered on vital samples from the crime scene, which remain to be identified.

Concerns

The Attorney General recently declined to investigate all of Heath’s cases as he thought the CCRC’s investigation would suffice. Only cases where medical evidence was critical to the conviction were given special regard in determining which cases should be looked into further. Why?

“If the complaints made by the families of Michael Stone and Neil Sayers are justified, then the CCRC’s review appears to be extremely limited,” said Dr Naughton. “There is other evidence in both cases, but there are also good reasons to question the truthfulness of that evidence as well. This may have happened in other cases too and the CCRC could be responsible for leaving potentially innocent people in prison.”

There are other reasons to examine Heath’s involvement in these cases as well. “We had hoped that the CCRC’s review of Dr Heath’s conduct would help to prove the innocence of Michael and Neil,” said Mr Vallens. “There were two previous cases in Kent where courts rejected Heath’s evidence, yet the CCRC will not confirm if they considered the impact of those cases on Neil and Michael’s cases. Why not?”

Track Record

Two of the eight proven cases were ones that had been referred back for appeal by the CCRC. In his book Trial and Error, Jessel strongly criticised the standard of Heath’s work in Sheila Bowler’s case. Mrs Bowler was subsequently acquitted after a retrial. The murder convictions of Victor Boreman, Malcolm Byrne and Michael Byrne were quashed as Heath’s tribunal opened due to the poor quality of Heath’s work. It had been referred back for appeal by the CCRC for that reason. “All of Heath’s cases should be investigated thoroughly,” said Boreman. “I cannot understand why the CCRC will not confirm if their investigation of Heath looked at the facts of my case and how similar they might have been to other cases when considering which cases should be looked into further.

Meanwhile, there has been no investigation of whether the facts of the other proven cases could have provided grounds of appeal in the forty-six cases that were not deemed worthy of further investigation as a result of the CCRC’s review of Heath’s involvement in those cases.

“If true, it is alarming that eight proven cases which go beyond professional disagreement were not looked into by the CCRC,” said Dr Naughton. “It is at least possible that of the cases that the CCRC, allegedly, decided did not require further examination at least one of them has similar facts to one or more of the eight proven cases, rather than to Fraser or Puaca. As such, it is possible that potentially innocent people are languishing in prison because the CCRC’s investigation did not consider the impact of those cases. If they have considered them specifically, they should simply say so. We had to set up the Innocence Network UK because the CCRC does not investigate the possibility of innocence properly. The way they are claimed to have handled the Heath investigation shows why Innocence Projects are necessary. No stone should be left unturned in the pursuit of justice.”

Review?

Fed up of the failure to get justice or even an adequate review of the conduct of a disgraced pathologist, a prisoner maintaining his innocence, has demanded a review of his own. Neil Sayers was just a teenager when his friend Russell Crookes was repeatedly stabbed to death in a field near Hadlow College in Kent in May 1998. A year later Sayers was found guilty of the murder along with fellow student Graham Wallis, whose evidence sent Sayers to jail. Sayers has maintained his innocence ever since. His case was one of the cases reviewed by David Jessel for the Criminal Cases Review Commission (CCRC), but Heath’s conduct was unusual in this case. His opinion that there was extensive fire-damage was contradicted by his own post-mortem examination.

After hearing that Heath was recently let off by the General Medical Council (GMC) Sayers has had enough. He is the first prisoner protesting his innocence to instruct his solicitor Steven Bird to apply for legal aid to instruct a forensic pathologist to review the pathology-related issues, including those that Jessel did not consider, regardless of the conclusions of the CCRC.

Bird hopes to instruct a forensic pathologist with experience of Heath’s work in the new year to review Heath’s conduct and the impact it had on the conclusions of other experts, particularly fire-related aspects of the case. Sayers maintains that it happened days after the prosecution claim it did and there is considerable evidence that was not heard by the jury to support his opinion. For example, there were statements of witnesses who did not see the scorch pattern and associated debris on three different searches of the area days after the Crown say the fire occurred. These statements languished in the unused material. Some of those witnesses gave evidence, but were not asked about the lack of scorch-pattern their visits. It was noticed on May 24th 1998 – two days before the body was discovered in nearby woods, but these statements were not disclosed for Sayers’ trial.

Sayers was also let down by his then lawyers from the firm of Berry and Berry. Just a year earlier they had represented burglar Craig Kerwin when he was charged over the death of pensioner Jocelyn Strutt at her home in Southborough, Kent. Only Heath maintained that Strutt had been murdered by being hit with a heavy instrument that fractured her ribs – actually she suffered from brittle bones and her ribs probably broke when she fell.

Two other forensic pathologists (Nat Cary and Vesna Djurović) disagreed with Heath and proved that Strutt’s death was of natural causes – the result of a myocardial infarct that ruptured and her ribs broke in the fall that followed that event. Despite this Sayers’ lawyers failed to investigate Heath’s conduct in other cases, which would have provided important material on Heath’s credibility. Over a decade later, Sayers wants that review and Bird will try to ensure that he gets that right after the CCRC’s review of Heath – the only review of the shamed expert’s cases since his spectacular fall from grace – failed to discover this material and how it could have affected Sayers’ case.

The Fall of the Disgraced Pathologist

Meanwhile, the disgraced pathologist continues to perform post-mortem examinations for coroners despite being forced to resign from the Register of Home Office Pathologists after a disciplinary tribunal found that he had slipped below the required standard over the deaths of Jacqueline Tindsley and Mary Ann Moore. Tindsley was found dead in her bed after her partner Steven Puaca raised the alarm in March 2002. Heath insisted that Puaca had smothered her, resulting in Puaca’s conviction later that year. He was cleared on appeal in 2005 after five forensic pathologists disagreed with Heath’s conclusions.

Moore was found dead at the bottom of the stairs of the house she shared with her partner Kenneth Fraser in May 2001. Heath wrongly insisted that her injuries were consistent with murder. Fraser was acquitted the following year. The evidence, as Heath now accepts, was consistent with an accidental fall down the stairs. Ironically, another Home Office forensic pathologist, Dr Peter Acland, was suspended in April by the National Policing Improvement Agency (NPIA) for making the opposite mistake.

Acland ruled the death of pensioner Mervin Fletcher at his home near Walsall in 2004 was due to head injuries caused by a fall induced by diabetes. He was wrong. Mustafa Abdullah was convicted of Fletcher’s murder in 2007 after using the victim’s cards to withdraw money from his account. The NPIA upheld nineteen of twenty-one charges against Dr Acland over his conduct in that case and suspended him from working for the police again. Heath no longer works as a forensic pathologist either, as he was forced to resign from the Register of Home Office Pathologists.

Tribunals

Three years ago a tribunal of the Advisory Board for Forensic Pathologists upheld twenty complaints against Heath over his handling of the deaths of Moore and Tindsley, so Heath resigned from the Register. It was not the end of his problems. Any case that he was involved in that the CCRC had been asked to consider – apart from ones that had resulted in successful appeals – was reviewed by their Commissioner Jessel, but the Attorney General, Lord Goldsmith refused demands for a full investigation of all Heath’s cases. This summer the General Medical Council held a tribunal to decide whether Heath was fit to continue as a doctor due to his conduct over the deaths of Moore and Tindsley. It concluded that his remorse was genuine and there was no need for further punishment.

“During your career as a pathologist you have undertaken some 10,000 forensic pathology cases, of which none had been criticised prior to the two cases related to these proceedings, and none had been criticised since,” the panel said. This was quite simply not true.

Serious concerns about Heath’s competence were raised over a decade ago including the death of Stuart Lubbock in the entertainer, Michael Barrymore’s pool in March 2001. He took eleven years to become a Member of the Royal College of Pathologists. The reason – he repeatedly failed his exams. That emerged during cross examination in an inquest into another of Heath’s controversial cases (Ibrahima Sey).

Heath’s evidence has been found wanting in several cases both before and since the two cases that ended his career as a forensic pathologist as well.

Options

In October 2006 Jessel decided that only eight of fifty-four cases that had applied to them which involved Heath should be looked at again. It didn’t include Sayers’ case and three years on not one of those cases were referred back to the Court of Appeal on the basis of Heath’s evidence. Only Simon Hall’s conviction for the December 2001 murder of Joan Albert will be considered by the appeal court. Hall was convicted in 2003, but the CCRC referred it back on the basis of fibre evidence rather than Heath’s conduct.

It leaves the wrongfully convicted little option but to try to instruct forensic pathologists themselves to review Heath’s work as Sayers has done. None of Acland’s cases have been reviewed either. In the absence of adequate reviews others will probably follow Sayers’ example. Despite the best efforts of the authorities this story will run and run.

Disgraceful

Neil Sayers had been shamefully let down. The 19 year-old student at Hadlow Agricultural College in Kent was left to pay the price for his lack of knowledge of forensic entomology. The life cycles of insects was crucially important to his chance of justice as that was the only possibility in the circumstances of this case to establish the post-mortem-interval, which would show when the relevant event to the body took place – either a range of when death occurred or, in this case, when the attempt to partially burn the body of Russell Crookes took place.

Crookes had been missing for almost two weeks. His mutilated, partially burned, maggot-infested body was discovered in a waterlogged grave in a copse run by Hadlow Agricultural College. Graham Wallis could be tied to the crime in various ways, but he took the chance to shift blame onto Sayers. Either Sayers is guilty and is therefore a vicious murderer and callous liar, or he is the victim of a cruel miscarriage of justice.

Forensic science offered the best chance to resolve whether Wallis was telling the truth, or cynically inserted an innocent man – supposedly a friend – into his account, to cover up his own responsibility for the murder of Russell Crookes. Sayers’ defence team performed abysmally. Evidence proving that Wallis had lied repeatedly was ignored, even the indisputable scientific variety. They ignored evidence that could have proved that Wallis had lied about when the fire occurred, even though that would have opened the door to destroying Wallis’ credibility.

A First Bite

Sayers knows that the criminal justice system does not permit him to have a second bite of the cherry, but he didn’t get a first bite. Wallis insisted that they had tried to burn the body of Russell Crookes immediately after he was killed, but this was hard to believe, because there had been several visits to that site in the days following Crookes’ disappearance.

According to Charles Miskin QC’s case the scorch-pattern and fire-related debris had been there on every one of these visits and been missed by all of them. It seemed very unlikely, but Sayers’ lawyers had failed to call evidence regarding the fire-site at the trial. He would not get a second chance. The same could have been argued regarding the maggots too, but Sayers was fortunate. Legal aid was granted once Kent Police confirmed that some maggots had been located.

Some had been routinely thrown away. Imagine throwing away half a cloth that had smeared blood on it before having it DNA tested and storing the rest in a fridge or cupboard at a police station for five years. Change cloth for maggots and that’s what happened here. It should never be allowed to happen again. This was vital evidence and it should have been treated with the respect due to a forensic science and evidence.

Belated Tests

Sadly the fixed sample, rather than the sample to be reared, had been thrown away. They would have been better as the time the precise time they died was known, which would have meant that a more accurate post-mortem-interval could have been calculated. The ʻreared’ maggots still existed; they were located in a fridge at a police station. They were brought to Dr Martin Hall’s laboratory at the National History Museum and tested by both Hall and his independent German colleague Dr Mark Benecke.

For five years the maggots had been prevented from telling their story, even though they were the only scientific way of establishing when the body suffered a significant event, which was either when death occurred if they had survived the attempt to burn the body, or when that attempt took place if they hadn’t. Unfortunately, Michael Heath’s error over the extent of fire-damage caused further problems and that would require a small fortune to put right.

Inadequate Representation

Russell Crookes was a student at Hadlow Agricultural College in Kent when he went missing in May 1998. His partially burned, mutilated and maggot-infested body was discovered nearly two weeks later.  It was an awful crime – of that there is no doubt. His murderer(s) deserved to be punished severely.

He had last been seen in the company of fellow students Neil Sayers and Graham Wallis. They soon emerged as the prime suspects – the only ones Kent Police investigated. Sayers protested his innocence, but Wallis confessed, although his confession was that he was there while Sayers did everything. It was more accusation than confession. Sayers’ solicitor at trial, Ian Reed, failed to grasp the significance of forensic science in this case.

He did not even notice the maggots, let alone understand their potential. The entomological evidence only had a chance of emerging for one reason. I knew that they should have been sent to a forensic entomologist and insisted on knowing what had happened to them, because if they existed, they could still be tested, even then, five years later.

Wasted Opportunities

Reed completely wasted the opportunity and the pathologist instructed by him, Peter Jerreat, failed to inform him as well, but Jerreat was the wrong choice. Reed’s firm Berry and Berry knew all about Michael Heath’s dubious pathology. The firm had done an excellent job of representing Craig Kerwin a year before Sayers’ arrest. They knew that Heath’s methods were suspect and which forensic pathologists should have been instructed. Reed made a mess of the opportunity.

The pathology-related issues were of great significance. That would have been realised if it had been investigated properly at the time. It wasn’t, but that could and should occur later this year, more than a decade after Heath made a mess of his case.

Sayers’ case is unique as the man who prosecuted him, Charles Miskin QC, relied on Heath as a credible expert, but subsequently turned the tables on Heath. Miskin represented the Pathology Delivery Board in the tribunal that it brought against Heath.

Miskin demolished Heath’s credibility without grasping the importance of pathology-related issues that were actually vital to Sayers’ case. Meanwhile, Sayers remains in prison waiting for a competent review of Heath’s pathology, which David Jessel failed to provide when the Criminal Cases Review Commission (CCRC) reviewed its cases that Heath was involved in.

Weak

Reed’s successor, Kevin Hansford, was even worse, regarding the maggots. Despite being made aware of them and their significance, he insisted on wasting months refusing to ask the police if they existed because he decided that they would not still be available five years on. That was not his job and he was wrong anyway.

He had been asked by Sayers – instructed actually – to enquire about them, but could not be bothered. He expected the CCRC to investigate everything that he put to them, yet refused to investigate. His submissions were utterly inadequate to put it mildly. Forensic science, let alone entomology, was not even mentioned in a case that could and should have become Britain’s genuine CSI if either he or Reed had done their jobs adequately. Unsurprisingly, Hansford’s weak application was rejected. If I had received such an application I’d have rejected it too.

Despite the rejection of his application, Hansford continued to refuse to ask the police if the maggots existed. Patience ran out and he was replaced by a solicitor prepared to ask the question, Jane Hickman. She didn’t think they would exist either, but unlike Hansford, she was prepared to ask the question and was happy to be proved wrong. Some maggots were located and provided to experts instructed by Hickman.

Legal aid was granted to have the maggots examined by Dr Martin Hall and a second expert, Dr Mark Benecke was independently instructed as well. Sadly, Heath’s wretched pathology loomed large still, as his report resulted in an error in the instructions, due his insistence on using misleading terminology that was unsupported by the evidence. The consequences of this error have never been redressed and probably never will be.

The Dream Witness that Became a Nightmare

Forensic pathology has endured a torrid five years. Paula Lannasʼ competence left much to be desired, but she fought off attempts to bring her before a tribunal through legal actions. Nevertheless, she was discretely removed from the Register of Home Office Pathologists anyway. The lessons were learned.

Michael Heathʼs tooth and nail fight to avoid the hearing failed. Consequently, in the summer of 2006 Heath faced the Home Office Pathology Advisory Board tribunal, chaired by John McGuinness QC. Heathʼs peers, Peter Ackerley, Dr Bob Bramley and Professor Thomas Krompecher completed the panel.

Heath was represented by Jean Ritchie QC, but the choice of counsel for the Home Office Pathology Delivery Board, which brought those proceedings, Charles Miskin QC, raised eyebrows. Why? Because another of Miskinʼs claims to fame was that he had relied on Heath as a credible expert witness in a murder case, but Heath had made a mess of the case, which helped to deny a young man on trial for his future a fair trial. Miskin had prosecuted Neil Sayers, who was a 19 year-old agriculture student at Hadlow College in Kent when his friend Russell Crookes met a grisly end.

Chastened

Miskin destroyed Heathʼs credibility during the tribunal, securing an important finding against him that he was inflexible once he had made up his mind even if the evidence said otherwise. He also paid no attention to the opinions of colleagues. Facing removal from the Register of Home Office Pathologists, Heath resigned after he had been found guilty.

A suitably chastened Heath faced another disciplinary hearing three years later. Heath was still able to practice as an expert, albeit not a forensic pathologist. He was no longer in the top league of British pathologists, but unlike his erstwhile colleague, Lannas, Heath remained a registered doctor, able to practice as an expert. The disciplinary hearing of the General Medical Council (GMC) reached its decision in June 2009. Heath remains registered by the GMC as an expert histopathologist.

A Kafkaesque Prosecution

Sayersʼ case is therefore very important. He has been in prison for over a decade, partly due to the poor quality pathology of the now disgraced Michael Heath, who had demonstrated a lack of professional courtesy by failing to provide information to Sayersʼ pathologist Peter Jerreat. Heathʼs work also adversely influenced other forensic scientistsʼ work.

Heathʼs conduct in this case left much to be desired, making a scientific and legal maze of the case that Sayers had no chance of resolving. He had to understand the ins and outs of forensic pathology, fire-damage and related issues, as well as forensic entomology, forensic botany and other scientific disciplines too. And if, somehow, he managed to achieve that, he had to instruct his lawyers to investigate these issues and hire the relevant experts.

If, by some miracle, Sayers, a young man of average intelligence achieved all that, it would still have counted against him. After all, why would a young student at Hadlow Agricultural College have such an interest in forensic science and knowledge of state of the art techniques?

He would have been accused of having an unnatural interest in such techniques. No doubt he was planning the perfect crime! So if he didnʼt know, it was his fault as instructing lawyers to conduct the required tests is his responsibility, but if he did, it was also his fault as that meant he possessed knowledge that no young man had any business knowing, so he must be guilty. Franz Kafkaʼs Joseph K stood a better chance of receiving a fair trial.