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.

Origins

The Crown Prosecution Service (CPS) is over a quarter of a century old. It was established in 1986 by the Prosecution of Offences Act (1985), but why? Previously, the police were responsible not only for arresting suspects, but deciding whether they should be charged and prosecuted as well. It became clear that this was not an efficient system as inappropriate cases were prosecuted and occasionally cases that should have been prosecuted were not. An independent prosecuting authority was needed, but why then?

In part the answer lies in an egregious, but strangely neglected miscarriage of justice – a case that seemingly had it all. It was a nasty murder that involved a botched investigation by police and pathologists, shameful bullying of juvenile or otherwise vulnerable suspects, an intransigent criminal justice system and ultimate vindication of the wrongfully condemned. It was a case where tunnel vision overwhelmed the evidence-led approach, resulting in an egregious miscarriage of justice.

An Egregious Miscarriage of Justice

The Catford Three (Colin Lattimore, Ronald Leighton and Ahmet Salih) were wrongly convicted of the murder of mixed-race transvestite Maxwell Confait in November 1972. Eight months later their first appeal was rejected along with their claims of police brutality. A year later a change in government resulted in the convictions being referred back to the Court of Appeal.

By this time the scientific evidence – time of death – had collapsed. Professor Donald Teare put the time of death as significantly earlier, insisting that it must have been between 6.30-10.30. His distinguished colleague Professor Keith Simpson agreed. They would later be proved to be wrong by several hours, but that was no consolation to the police or prosecutor as their expert Professor James Cameron was even further out.

At the trial Cameron changed his time of death to possibly being as late as 1.00 a.m. – just 21 minutes before the fire was reported. This change of timing mangled the alibis of the three defendants who had prepared their defences for the earlier time of death that the police doctor and Cameron had previously said. That undermined the strength of alibis, especially Lattimore, who had a good alibi by ambush.

The retraction of their confessions counted for nought as well. They had been secured without a solicitor or even an appropriate adult being present. In 1975 the Court of Appeal quashed the convictions. Headed by Lord Justice (Sir Leslie) Scarman as he then was, the appeal judges criticised the policeʼs investigation and noted that the lack of injuries indicating a struggle suggested that Confait knew his killer.

Enquiries

Scarman took the rare step of declaring Lattimore, Leighton and Salih innocent. That prompted Roy Jenkins to re-open the inquiry, but Peter Fryer, who later became Assistant Chief Constable of West Mercia Police, failed to solve it. A full enquiry of the policing, especially regarding the effectiveness of the Judgeʼs Rules in the treatment of children and the vulnerable (then termed educationally sub-normal) was also ordered.

It was chaired by Mr Justice (Sir Henry) Fisher, who demanded and got the power to apportion guilt on the balance of probabilities if he wanted to – an outrageous concession that should never have been agreed to. Fisher made recommendations to the Judgeʼs Rules, but declared two of the Catford Three guilty.

He avoided libel proceedings as the report was returned to Parliament, which made it immune . It should not have been. Fisherʼs insistence on being allowed to declare people probably guilty when they were not should have had personal consequences, especially as the person responsible was a judge who should have known better – far better.

Fisherʼs serious error resulted in the Royal Commission of Criminal Procedure (1979-81). During that Commissionʼs investigation evidence emerged not only of the innocence of the Catford Three, but of who the real perpetrator was. Nevertheless, it was one that Fisher refused to apologise even when requested to by then Attorney General Sir Michael Havers.

Vindicated

That Royal Commission produced important legislation – the Police and Criminal Evidence Act (PACE) in 1984 and the Prosecution of Offences Act a year later. PACE became operational in 1986 and the Crown Prosecution Service was established that year as well. The CPS in particular would prove to be a terrible disappointment on many levels.

It also ended any doubt about the innocence or guilt of the Catford Three as it became an early vindication case – a miscarriage of justice that was resolved either by the conviction of the real killer, or if deceased by acceptance by the criminal justice system that the real perpetrator had been identified. That is what happened in this case.

The Royal Commissionʼs investigation established that Confait had in fact been murdered at least two days before the fire of April 22^nd 1972 which alerted police to Confaitʼs death. Professors Alan Usher and Keith Mant showed that through the discolouration of organs, which begs the question of how Cameron, Teare and Simpson – all distinguished forensic pathologists – missed something as obvious as that.

Detective Chief Superintendent E J George and Detective Chief Inspector Eddie Ellison identified not only the real murderer, but an accomplice and witness to the murder as well. They had interviewed Paul Pooley who admitted being in Confaitʼs Doggett Road abode when Douglas Franklin murdered the unfortunate Confait. Franklin, knowing the game was up, committed suicide shortly after being interviewed.

In February 1980 they presented their report to the Director of Public Prosecutions (DPP) Sir Michael Havers. It destroyed the case against Lattimore, Leighton and Salih once a,nd for all. Havers made a statement to Parliament declaring the three innocent in August 1980. They had been vindicated, but it would take more than five years for the legislation born of that tragedy to result in the ʻindependentʼ prosecuting body, the CPS, opening for business.

Stalling Justice

The Police Corruption Trial of the Century had ended in the shambolic farce that some – not me – were always convinced it would be. Now for the first time I can say exactly what I think of the deeply flawed process.

Graham Mouncher, and seven former colleagues in South Wales Police, Michael Daniels, Peter Greenwood, Paul Jennings, Thomas Page, Richard Powell, John Seaford and Paul Stephen were acquitted on the orders of the judge, Mr Justice Sweeney last week. Ian Massey and Violet Perriam were also acquitted.

The Crown Prosecution Service (CPS) threw the towel in without asking for time to try to locate the missing files. Yesterday the charges against the remaining defendants John Gillard, Stephen Hicks, John Murray and Wayne Pugh were dropped – Rachel OʼBrien had already been found unfit to stand trial for health reasons.

Explanation

Page demanded an inquiry into why he and his colleagues were subjected to the inquiry. That was obvious. An investigation carried out by South Wales Police under the auspices of the Independent Police Complaints Commission (IPCC) had gathered evidence that serious crimes – conspiracy to pervert the course of justice and perjury had been committed during the original Lynette White Inquiry (Phase I).

That evidence had been presented to the CPS which decided whether there was sufficient evidence to justify prosecutions. It concluded that those charged, including Page, had a case to answer. Consequently, they were committed for trial.¹ It was exactly the same process that anyone suspected of a serious criminal offence has to go through.

Unlike the Cardiff Five who were demonstrably innocent – they had been vindicated by the conviction of the real killer and the scientific evidence – Page and his co-defendants had retained their liberty while facing and standing trial.

They ran a sadly predictable defence – a despicable one, but one that had borne fruit previously. They blamed the victims of the proven miscarriage of justice (see Conspiracy of Malice – Predictable). But before the lives of the Cardiff Five could be trashed for nothing error after error had to occur.

Inadequate

Represented by a battery of lawyers at public expense the games began. It soon became clear that the Crown Prosecution Service (CPS) was not up to the task if it ever has been. Despite knowing in advance that lawyers for the eight police officers scheduled to face trial first planned to use disclosure obligation to try to force the collapse of the trial before a single word had been given in evidence, the CPS failed to appoint a Disclosure Officer to ensure that the Phase III officers understood exactly what was required of them.

The CPS chose to sell out the interests of justice in the hope of cutting costs and corners. This wretched penny-pinching would have dire consequences later as Graham Mouncher and his colleagues would shamefully evade judgement by a jury of their peers. The responsibility for that rests squarely on the shoulders of the CPS. The Director of Public Prosecutions and the Attorney General failed miserably to ensure that the bare minimum of standards were observed in this case.

It ought to have been impossible to botch this case. It was or should have been a slam dunk. The real killer had admitted his guilt. Jeffrey Gafoor had made it clear that he had acted on his own and that the original defendants the Cardiff Five (Yusef Abdullahi, John and Ronnie Actie, Stephen Miller and Tony Paris) had nothing to do with the murder of 20 year-old Lynette White.

Gafoor had allegedly told a different story to his QC John Charles Rees. This ʻlegally privilegedʼ information was disclosed by a third party considering Reesʼ fees for representing Gafoor. But it should not have mattered a whit. Indisputable crime-scene evidence and forensic science proved beyond credible doubt that the Cardiff Five were completely innocent of the murder of Lynette White, that one person had killed her on his own and that this had been known before the Cardiff Five were tried.

The CPS and Dean failed miserably to present expert evidence of this despite having it available to them. This was and remains a wretched and miserably botched prosecution. Whether it was deliberately botched remains to be seen.