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.

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.

Poisoned Chalice

The Lord Chief Justice, Lord [Igor] Judge, reserved judgement yesterday on the second appeal of Kenneth Noye. Clare Montgomery QC argued that crucial witnesses Alan Decabral, who was shot dead in 2000, and disgraced pathologist Michael Heath must now be seen as so unreliable that Noye’s conviction for the 1995 ‘road-rage’ killing of Stephen Cameron that it should be declared unsafe.

Montgomery told the judges that Heath had gone beyond the limits of forensic pathology in his evidence. Forensic pathologist Dr Nat Cary agreed, explaining that Heath’s methods for determining whether ‘considerable force’ had been used were unreliable. The knife probably did go in to the hilt, but that alone is not a good measure of force.

Nevertheless, Heath was now so discredited that following Cary’s opinion, which supported that of Peter Jerreat, the Criminal Cases Review Commission (CCRC) referred the conviction back for appeal. Montgomery argued that Heath’s testimony was based on unscientific conclusions, and had undercut Noye’s claims of self-defence. She detailed evidence that supported his claim that the second stage of the confrontation on the slip road to Swanley off the M25, amounted to self-defence.

Self-Defence

Evidence showed that Noye had got the worst of the fight against Cameron and retreated, but brandished a knife. Montgomery went through the accounts of various eyewitnesses including Cameron’s partner Danielle Cable to show that Cameron came after Noye and that in this critical phase, even when brandishing the knife, Noye’s actions were consistent with self-defence.

Noye fled to Spain after the incident, but was extradited in 1998 after Cable was taken to view him and identified him. Noye was convicted two years later, when his claim of self-defence was rejected by the jury. Montgomery claimed that Decabral and Heath were instrumental in that verdict and that their evidence can no longer be trusted.

Decabral, the driver of a Rolls Royce, had a criminal past. His wife said he was a drug-dealer with debts. A previous appeal had established that this evidence affected his credibility, but not the safety of the conviction. Decabral had claimed that he saw Noye conceal the knife and lunge at Cameron, and say, ‘That sorted him out; you got yours mate.’ Montgomery pointed out that the other witnesses did not see this and that the injuries suffered by Cameron were consistent with Noye’s account.

Dr Cary explained that the injuries were likely to have been caused through a different mechanism of the confrontation than that favoured by the now thoroughly discredited Heath.

Discredited

Cary disagreed with Heath’s term ‘considerable force.’ Even accepting that the knife may have gone in to the hilt Cary says that is the wrong measure of force and that the damage done, especially to bone is a better indicator. Mark Ellison QC claimed that the Crown’s case did not depend on either witness and detailed the evidence of other witnesses that contradicted Noye’s account and suggested that Cary had a habit of countering Heath, which Cary denied.

Almost five years ago Heath faced a Home Office Forensic Pathology Advisory Board Tribunal due to complaints by colleagues over his methods and evidence in two cases – Kenneth Fraser and Steven Puaca. Despite his protests he was found wanting and resigned from the Home Office Register of Home Office Forensic Pathologists after losing the hearing.

Heath still conducts post-mortem examinations for Coroners, but is no longer an accredited forensic pathologist. The General Medical Council concluded that there was no need to punish him further by removing his licence to practice. Noye’s is only the second case that the CCRC referred back for appeal, based on his pathology evidence. Heath had been found to be dogmatic in his conclusions and reached conclusions outside the limits of forensic pathology in the tribunal in relation to Puaca. Mushtaq Ahmed made the same complaints to no avail last December.

Montgomery argued that the evidence given by both Decabral and Heath would have affected the way the jury viewed Noye’s claims of self-defence and that both are now so tainted that conviction is unsafe. Judgement was reserved in Noye’s appeal.