The Eleventh Hour

In two days time Mr Justice (Sir Wyn) Williams will deliver his long-awaited judgement at 11. It’s expected to be a long document, detailing a sorry tale of one of Britain’s most notorious miscarriages of justice. It is expected to determine whether the Cardiff Five suffered a miscarriage of justice at all.

It has become a saga that even Eugène Ionseco the master of Absurdist theatre would have struggled to comprehend. White became black – literally – and now history may not only be rewritten, but obliterated. If Williams rules in favour of the former officers suing South Wales Police, it will turn history on its head and deter attempts to investigate alleged police malpractice in miscarriage of justice cases.

The question of why South Wales Police were allowed to investigate themselves and why the institutions and politicians that they are supposedly accountable to permitted it to happen will be shuffled off into an archive, never to be answered. But it will answer some pertinent questions, not least of which is do we have the police and criminal justice system we deserve?

Pertinent Queries

If we tolerate this, the answer is yes. The Lynette White Inquiry began over 28 years ago. It has seen five innocent men wrongly accused of her murder – three were wrongfully convicted. John and Ronnie Actie were acquitted in 1990. Two years later the convictions of the Cardiff Three (Yusef Abdullahi, Stephen Miller and Tony Paris) were quashed on appeal.

The case was reinvestigated by Phil Jones, the former Head of South Wales Police CID. Jones was later jailed for corruption. His investigation fizzled out after an absurd insistence that police should be allowed to use up all the DNA if they wanted to. They were stopped from doing so and within six months an improved DNA testing system was announced by the now defunct Forensic Science Service. That system was crucial in resolving the Lynette White Inquiry.

A new investigation (Phase II) took four years to complete, but it made history. It became the first miscarriage of justice case in Britain to be resolved by the conviction of the real murderer. Jeffrey Gafoor’s guilt was proved by overwhelming evidence, especially the combination of forensic science and crime-scene evidence. It was in reality a simple tale, which suffered so many twists and turns that it became complicated.

The truth about Lynette’s murder was plain and obvious – don’t take my word for it, the evidence that cannot lie proves it, but in a trial allegedly necessary to put right what had gone wrong, the most compelling evidence of the innocence of the Cardiff Five never saw the light of day.

The Final Insult

Instead, a ‘scientifically ludicrous’ scenario was put forward. Angela Gallop said that it was ‘technically’ possible that there had been two attacks on Lynette. She never came close to saying that is what happened and with good reason. It flew in the face of logic. Gafoor could only remember inflicting 10-12 wounds. He accepted that there were more than fifty, including a vicious slitting of her throat.

The crime-scene evidence was never consistent with two attacks. It was known that the killer had cut himself. His cast-off blood had been located as early as 1988. The inquiry rightly proceeded on the basis that they were looking for a solitary killer – sexually motivated homicides almost always are committed by one person.

It was claimed that there had been two attacks – one by Gafoor and the other by the Cardiff Five, but if this had happened, why was there no trace of any of the Cardiff Five in that flat. The murder happened in the dead of night – there was no lighting. How could five men and at least two ‘witnesses’ have committed that murder and got out without leaving any trace of themselves or interfering with the plethora of evidence tying the real killer to his crime?

How could Gafoor alone have cut himself while inflicting comparatively minor injuries and the others had not? This defied belief, yet it has been repeated in the compensation case too. And yet again rather than call the scientific evidence that demolished this scientifically ludicrous scenario, it is allowed to pass unchallenged. History is being obliterated and the public is expected to foot the bill again without anyone or any institution taking responsibility.

Significance

Today, the real and sole murderer of 20-year-old Lynette White, becomes eligible to apply for parole. Jeffrey Gafoor admits that he alone is responsible. In the early hours of Saint Valentine’s Day 1988, Lynette was stabbed over fifty times. Her throat was slit. Still Gafoor continued his vicious attack. He stabbed her breasts and chest repeatedly – at least half of the offensive injuries were to that area of her body. The attack continued after she was dead or dying. The brutality obviously went far beyond what was required to kill her. It was cruel and in my view torture. Gafoor has never explained why Lynette suffered this horrific fate. And he has not explained why he stayed silent while five innocent men stood trial for a crime he admits he committed on his own.

The Cardiff Five ((Yusef Abdullahi, John and Ronnie Actie, Stephen Miller and Tony Paris) were charged with Lynette’s murder in December 1988. Almost two years later the Actie cousins were acquitted and the Cardiff Three were wrongfully convicted. It is now acknowledged to be one of Britain’s most notorious miscarriages of justice. It was quite obviously a sexually motivated homicide, even if that was not the label in use in the 1980s and ’90s.

Professor Dave Barclay conducted a review of the scientific evidence, which led t the vindication of the Cardiff Five and a measure of actual justice for the memory of Lynette White. He explains the significance of the crime being a sexually motivated homicide. “All but a very few are on the breasts, but sheʼs had her neck cut as well and wrists and so on”, he said. “Thereʼs a slash across the face. Itʼs a sexually motivated homicide – full stop. [I]tʼs a sexually motivated homicide and donʼt forget those stab wounds are through the puffa jacket and clothing and yet theyʼre still, theyʼre all concentrated on the breasts. Itʼs a single male sexually motivated homicide” [my emphasis].

So why the emphasis? Sexually motivated homicides are almost always committed by one man acting on his own, like Gafoor. Sometimes two vicious people combine and encourage each other to commit such crimes. Barclay and others cannot provide a single example in all the annals of crime where a murder like this was committed by five men, who made accomplices of two other sex workers, but let them live after committing such an evil crime. And all of this was allegedly done without leaving any trace, tying them to the scene or victim in total darkness. Sadly, Barclay has never given evidence about all this and more. So what would he have said if he had been given the chance? “Interestingly I give evidence more in Holland and places like that where they seem quite happy to have people give an overview”, he said. “I would have said whereʼs the evidence for any of that bullshit? I might even have said that in court”.

Evidence-led

Barclay demonstrated that the crime-scene evidence, forensic pathology, forensic psychology and blood distribution pattern was only consistent with one explanation. Lynette was murdered by one person acting on his own. That person, by his own admission and guilty plea – and evidence – was Jeffrey Charles Gafoor. For at least nine months the investigation followed the credible evidence – the crime-scene and forensic science wasn’t lying, but the original investigation took a diversion. It derailed the inquiry.

“[I]f you have two possibilities, you need very persuasive evidence to go for the least likely, so youʼve got a single male arguing with a prostitute over a deal and thatʼs what the scientist thought for nine months, or youʼve got this thing where Angela Psaila, [Mark] Grommek, at least and maybe somebody else and the five accused are all tearing round this room, sawing at peopleʼs necks and trying to cut their hands – stuff like this”, Barclay says.

“Angela Psailaʼs supposed to be asked to cut the neck or hands, I canʼt remember, or the wrist, so thatʼs so inherently improbable on every possible level: psychologically, practically and just they couldnʼt do it in that dark room without leaving footwear and finger-marks in blood and if you actually consider something I did after I totalled up the number of people that were supposed to have held the bloody knife”, he continues. “Thatʼs four people, so there are four people with blood on their hands and theyʼre going out without leaving finger-marks in blood or whatever, so I think that was a major thing. Occamʼs Razor is a thing that we use a lot in forensic science, ʻin all probability, the simplest explanation is the correct oneʼ, and you have to be really sure that the simplest explanation isnʼt correct and that was something that was not done either”.

The Cost of Silence

The methods that Barclay used in his review and subsequent work on this case were available in the 1980s and ’90s. There was no reason for this miscarriage of justice to be allowed to occur. Jeffrey Gafoor was the one person who knew for certain that not only were the Cardiff Five innocent, but that they were suffering a grave injustice for his crime. He chose to stay silent and let their lives be destroyed Ronnie Actie and Yusef Abdullahi both died before reaching fifty. John Actie, Stephen Miller and Tony Paris still endure the unjustifiable whispering campaigns in a case that disgraces justice. Meanwhile, the real killer, becomes eligible to apply for parole today after completing a tariff that was incorrectly applied and failed miserably to reflect the crimes Gafoor committed.

There is no excuse for the lives of the Cardiff Five and their families to have been wrecked. There is no excuse for Lynette’s family to have been denied justice for so long. While Gafoor is not responsible for justice miscarrying, his cowardly decision to refuse to take any responsibility for his crime when it mattered destroyed several lives. Do the courses and rehabilitative exercises that he experiences in prison to prepare him for parole bear this in mind? If not, why not? The real and sole killer received an inappropriately lenient tariff that further insults all the victims of this tawdry injustice – one that simply won’t go away until justice is allowed to reign once and for all.

Unconscionable

The Dutch criminal justice has a good reputation abroad. Even activists, when told about the now notorious Lynette White Inquiry as the battle to free the Cardiff Three was nearing its conclusion in 1992, defended it. They said that it was impossible for justice to miscarry in the Netherlands as badly as it had in the Lynette White Inquiry for example.

Their outrage was limited to a peace activist who had been sentenced to two weeks imprisonment for daubing graffiti in an American base after breaking into it. They insisted that this was sentencing him twice for the same crime and they were outraged about it.

This, they insisted, was the worst miscarriage of justice in the Netherlands at that time. But they were wrong. The Dutch system was capable of miscarrying as badly as it had in Britain – worse even.

Vicious

On June 22^nd 2000 ten-year-old Nienke Kleiss was raped and murdered in Beatrix Park in the small town of Schiedam, which is within easy commuting distance of Rotterdam. She fought hard for her life and left vital clues to identify the perpetrator, but her efforts were wasted by police and the Dutch criminal justice system for four years as justice miscarried twice.

Her eleven-year-old friend, Maikel Willebrand, with whom she had been playing, was also viciously stabbed at the same time by Wik Haalmeijer. Willebrand survived by playing dead only to be absurdly accused of having inflicted the injuries on himself to cover up his crime – the attack on Kleiss. It was an utterly ludicrous allegation and an unconscionable way to treat a child who had been the victim of a vicious attack.

DNA testing would play a large part in this inquiry. It quickly proved that Willebrand had been telling the truth that he had been attacked himself and had played no part in the rape or murder of Kleiss, but police were still not prepared to listen to him at all.

They only moved on from Willebrand when they heard about a coincidence regarding the man who then became their new prime suspect Kees Borsboom – the man who had helped Willebrand after the crimes by reporting it to the police. And even then they would not accept Willebrand’s account because the boy would not turn on the man who had helped him.

Fanciful

DNA expert Richard Eikelenboom, then working for the Netherlands Forensic Institute (FSI) developed the DNA protocols that were used in the Schiedammer Park case. He knew that Low Template DNA had produced important results, quickly realising that both Willebrand and Borsboom had nothing to do with the crimes, but he was not the Reporting Officer and Ate Kloosterman’s report was very selective.

Kloosterman told the judge that the ‘foreign’ DNA results on Kleiss’ shoe and fingernails had been deposited by a child at her school. Unknown to the court there were compelling reasons to reject that explanation. Kleiss had been playing in water just before she was attacked and the surviving victim had told police that she had scratched her assailant – time would tell that she had.

The results on the shoe and elsewhere were also the same – it would have required an incredible coincidence for all of those alleles to have been deposited at various locations innocently, but Kloosterman knew the significance of the results well or should have done. It was obvious that they had been deposited by one person and not by Kleiss’ classmates. They had the DNA of the real perpetrator – enough to eliminate the entirely innocent Borsboom, but selective disclosure prevented that from happening.

The prosecution team in the Lynette White murder trial included two Queens Counsels, led by David Elfer. The other became Mr Justice Roderick Evans. Elfer failed to understand Stephen Miller’s vulnerability and used a confession that was false, ludicrous and unlawfully obtained. He relied on obviously unreliable witnesses and presented a case to the jury that should never have come to trial.

Both he and the CPS must have known that the statements of one of Yusef Abdullahiʼs alibi witnesses supported his claims that he had been working on a ship in Barry Docks on the night of the murder. Despite that knowledge they not only bluffed the defence into not calling vital alibi witness Brynley Samuel, but gave the jury the false impression that Samuel didnʼt help Abdullahi.

Judicial Responsibilities

The trial judges bear responsibility too. The late Sir David McNeill plainly had a standard on oppression that Lord Taylor strongly disagreed with – one that was open to shocking abuse. It set a standard that would have allowed police to find the weakest person and bully them into accepting what they wanted to hear. Even now some believe that there was nothing wrong with the way that Miler was questioned.

Taylor, sitting with a then Mr Justice (Sir John) Laws and Mr Justice (Sir Oliver) Popplewell, were ‘horrified’ by the methods that McNeill found admissible, but they too failed to resolve a vital issue. McNeill was wrong in law and that fact should have been acknowledged by the appeal judges. Had McNeill ruled on the confession as he should have done, the miscarriage of justice would probably not have occurred and the terrible error of not arguing that Miller had been bullied would likely not have happened in the second trial.

Severance

Even the next trial judge Mr Justice (Sir John) Leonard cannot escape censure. A few well-chosen words from judge to jury that Leonard thought would dispel the prejudice from refusing to sever Miller’s trial from that of his co-defendants who did not confess – a recurring theme in miscarriage of justice cases – were ignored by the jury. The same thing had happened in another South Wales case where Leonard was the trial judge less than five years earlier.

That too was later recognised as an awful miscarriage of justice – the Darvell brothers (Paul and Wayne). The murder of Sandra Phillips remains unsolved. Leonard should have been criticised by the Court of Appeal judges for his failure to sever these trials – in practice the only way to ensure that the trials of defendants who did not confess were not prejudiced by the admissions of those who did.

It must now be clear – it should have been at the time – that juries rely on confessions. They cannot believe that people confess to crimes they did not commit, especially for such a meagre reward as an end to the interrogations when that means sacrificing their long term interests and freedom, possibly for a very long time, but they do.

A Wretched History

The history of false confessions contributing to wrongful convictions is a long and wretched one that has continued to occur despite PACE. Understanding of the causes of these confessions and extent of vulnerabilities has undoubtedly improved, but defence lawyers cannot be immune from this process.

Millerʼs original lawyers had no idea or understanding of the extent of his vulnerabilities and need for robust support. The result was an egregious and entirely preventable miscarriage of justice, not just against Miller, but his co-accused too.

Inadmissible

The jury should have been protected from relying on inadmissible evidence like that, but it must be obvious that juries tend to believe confessions, however absurd, in these cases, especially without receiving the proper context of why innocent people confess to crimes they did not commit and on occasion implicate other innocent people. They too were not criticised by the appeal judges.

Those judges couldn’t wait to quash the convictions of the Cardiff Three, but in their rush to do so they failed to allow grounds to be developed that years later were at the heart of the recently failed trial of the former police officers and witnesses. Had those grounds been developed in 1992 as they should have been, safeguards that could have helped to prevent other miscarriages of justice would have been established.

Damage Limitation

The Court of Appeal refused to apologise and despite its strengths on the one area it considered in depth, the judgement that freed the Cardiff Three left them vulnerable to an unjustified and unjustifiable whispering campaign. That disgraces the criminal justice system.

It was in fact little more than a damage limitation exercise. However the attempt to force the lid shut on a can of worms, the like of which South Wales had never seen before, ultimately failed. The final reckoning and damage to both the force and criminal justice system proved far worse than if they had grasped the nettle two decades ago. There is a lesson in that.

The Cardiff Five are no more innocent now than they were when wrongly arrested and charged. They should never have gone through the ordeal that the state gave them no option but to endure and nor should Lynetteʼs family or indeed the people of South Wales. It should not have required finding the real killer to prove innocence and facilitate an investigation into what went wrong.

The Suspension of Disbelief

There is no longer any credible doubt that the Cardiff Five¹ are innocent, but they always were. It should not have required the conviction of the real murderer of Lynette White to convince anyone. Any objective review of the evidence should have led inexorably to that conclusion. As with other miscarriage of justice cases the evidence and common sense ought to have prevented not only wrongful convictions, but the wrongful arrests too.

The murder of Lynette White is a tawdry tale of a vicious killing that involved excessive brutality – far beyond what was needed to kill – and the investigation and trials that followed of justice betrayed. It is now established as one of the most notorious and easily preventable miscarriages of justice in British history.

An extraordinary tale began in the early hours of Valentine’s Day 1988 with what was then the most brutal murder of its type in Welsh history – over 50 stab wounds – with obvious sexual overtones to it. After ten months the original inquiry revealed a closed mind that focused on obviously innocent men.

Forensic science proved the police’s scenario that five men and at least two alleged eyewitnesses were in that room along with the victim was quite frankly ludicrous. This became an egregious miscarriage of justice, but it ought to have been impossible. The quality of the evidence gathered against the five men who eventually stood trial was woeful to put it mildly.

It was a case that required an extraordinary suspension of disbelief from several professionals, especially lawyers who should have known better, but there is nothing in that story that does not occur routinely in other cases. It is the combination of what has gone wrong that is incredible. Equally unbelievable is the failure of the criminal justice system to halt a plainly inappropriate prosecution in its tracks and hold those who failed the public accountable.

Bullied and Hectored

It is well known that Stephen Miller was ‘bullied and hectored’ by police in interviews that breached his rights shamefully. Miller was shouted down until he accepted the police’s version of Lynette’s murder – a scientifically ludicrous scenario that produced an utterly false confession.

Miller was an extremely vulnerable person. He was highly suggestible and of below average intelligence. He was very susceptible to bullying and held to an absurd standard by David Elfer QC – a standard that required accepting everything put to him to meet Elfer’s definition of suggestibility.

Dr Gisli Gudjonsson, the acknowledged leader in his field, understood the extent of Miller’s vulnerability to making a false confession. Sadly Elfer did not and, even more worryingly, nor did Miller’s defence lawyers for his trial and retrial. Their failures contributed in no small measure to an awful miscarriage of justice.

Absurd

The victims of crime (or their family) have the right to give statements about the impact the crime has had upon them to the judge before he or she decides how long the guilty party must serve and rightly so. However, nowhere in the debate on victims’ rights is there any mention of the effects of the rights of victims of miscarriages of justice who have been vindicated, even though there should be no doubt that they have been victimised too.

Despite vindication – a miscarriage of justice that has been resolved by the conviction of the truly guilty – real perpetrators have been treated more leniently than the entirely innocent ones they allowed to be wrongly accused or convicted. That is shameful, especially as it was entirely preventable.

Horrific

The power to set tariffs (the minimum time that must be served of a life sentence) was taken away from the Home Secretary before the first case of vindication in a murder case in the DNA age in Britain, which occurred in July 2003 when Jeffrey Gafoor pleaded guilty to the murder of Lynette White. She was the victim of what was then (Valentine’s Day 1988) the most brutal murder of its type in Welsh history.

Her murder involved over fifty stab wounds, some of which were inflicted as she was dying or after death. Yusef Abdullahi, Steve Miller, Tony Paris and the cousins John and Ronnie Actie were charged with her murder and the Actie cousins were acquitted in November 1990, while the Cardiff Three were jailed for life. The wrongful convictions were quashed two years later, but not before the Cardiff Five had served a total of sixteen years actual prison time for a crime that they did not commit.

Unconscionable

Within a year of the publication of my book Fitted In: The Cardiff 3 and the Lynette White Inquiry in 1998, the case was re-opened and a combination of excellent police work and investigations by forensic scientists resulted in the arrest and conviction of Gafoor. He gave no comment interviews before admitting his guilt at his first appearance for pleas.

However the case against him was compelling as there was no answer to the DNA evidence, which could not have been planted for reasons that have been explained in The Cardiff Five: Innocent Beyond Any Doubt¹. Nevertheless, the law orders judges to credit defendants for ‘swift’ guilty pleas when setting tariffs. But did that apply in this case?

It was an horrific crime and Gafoor had allowed men he knew to be innocent to serve several years of actual imprisonment for his crime, but it was not entirely Mr Justice Royce’s fault that the tariff seemed unduly lenient. However, it remains obscene that there is a real possibility that the truly guilty Gafoor could serve less time in prison for a crime that he committed than the innocent men that he allowed to suffer wrongful imprisonment for the same crime. There can be no excuse for that.

Remorseless

Gafoor can show ‘genuine’ remorse for his crime, because he has reason to be sorry for murdering White, but the Cardiff Three could not without lying about their guilt – a lie that would have prevented her murder from ever being correctly resolved. Given the nature of the crime that they were convicted of they would have been deemed to be ‘in denial of murder’ if they failed to admit their guilt as well.

They would also have been required to take courses to address their offending behaviour, even though they were actually innocent. Gafoor can easily do all of this and progress through the system because he is guilty. Ironically, the system caters for the needs of the guilty and rewards them, but punishes the innocent.

The Cardiff Three could have been crushed by their experience of wrongful imprisonment, or worse still committed suicide in prison, while Gafoor savoured his ill-deserved freedom – none of which was taken into account when setting the tariff.

The criminal justice system claims to put victims at its centre of the system, so why have the Cardiff Five been denied the status they deserve as victims of Gafoor, the criminal justice system and perjury too?

Ludicrous

When sentencing the real murderer of Lynette White to life imprisonment in July 2003, Mr Justice (Sir John) Royce told Jeffrey Gafoor: “You allowed innocent men to go to prison for a crime that you knew you had committed.”

In October 2005 Royce gave his reasons for imposing the thirteen year tariff – the minimum that Gafoor must serve before he becomes eligible for release on parole – that included the four months that he served on remand before pleading guilty – although he stressed that it didn’t mean that Gafoor would be released that soon.

Nevertheless it was significantly less than the tariffs imposed on two of the entirely innocent Cardiff Three which were between fourteen and eighteen years.

Constraints

Royce believed that he was only allowed to add one third of his starting point (fifteen years) for aggravating circumstances. In this case they were the brutality of the crime and the fact that he had allowed innocent people to be convicted for his crime.

Royce added four years and six months for that. That is bizarre. Despite it being a particularly brutal crime and Gafoor allowing innocent men to suffer, Royce did not impose the maximum for aggravating circumstances. Why not?

He then gave Gafoor credit for an early guilty plea (he has to allow one sixth for that) and also for assisting the police with their current investigation into what went wrong. He deducted three years and six months for mitigation and because Gafoor was caught in 2003 Royce had to apply the law as it was then, which he thought meant that he had to add the amount to twelve years – the standard tariff at that time¹.

Consequently, Gafoor – the real murderer – received a significantly lower tariff than the innocent people he allowed to go to jail. The Cardiff Five served a total of sixteen years hard time in prison. There is a real possibility that the real murderer will serve less time in prison than the innocent men his silence allowed to be convicted. He becomes eligible to apply for parole in 2016.

Wrong

This is obscene and it sends out a message to killers that it is far better for them to allow the innocent to be convicted and do nothing than take responsibility for their crime. Previously, tariffs were determined by the Home Secretary, but after a challenge to the European Court of Human Rights, the court in Strasbourg ruled that the law had to be changed.

Ironically, a decision that gave the powers to set tariffs to judges deprived them of the very discretion they required to deliver justice based on the particular facts of individual cases. Mr Justice Royce found his hands firmly tied when he came to impose the tariff on Gafoor, or believed that they were. The law resulted in serious aggravating circumstances only outweighing comparatively trivial mitigating circumstances by just a year.

Favour

Meanwhile, the system is weighted further in Gafoor’s favour, as he can express remorse, attend the relevant courses and even use the fact that he assisted the inquiry into what went wrong in the original inquiry to support his parole application.

He can point to the fact that in almost eleven years before his arrest on suspicion of the murder of Lynette White he had not come to the attention of police. His only conviction was an assault on a colleague at work in 1992, which resulted in a non-custodial sentence.

An Insult

If Jeffrey Gafoor serves less time in prison than the innocent men he left to rot for his crime, it will be an insult to every concept of justice. It may be too late for the Cardiff Five, but there will be other cases of vindication where the same issues arise.

It is not too late to ensure that judges have the unfettered discretion to set appropriate tariffs in such cases that fit the individual circumstances of those cases. Perhaps it can’t help the Cardiff Five, but justice must surely reflect society’s disgust at criminals who not only commit terrible crimes but allow innocent people to pay the price of their crimes as well.

Anything less disgraces the very name of justice.

Abolished

The late Yusef Abdullahi would not be compensated for his ordeal despite his undoubted innocence if he had been wrongfully convicted now. The Cardiff Three (Abdullahi, Stephen Miller and Tony Paris) were compensated under the Discretionary Scheme which was abolished in 2006.

“The discretionary compensation scheme was abolished on 19 April 2006 by the then Home Secretary and the coalition Government have no plans to reintroduce it”, wrote the Ministry of Justice Minister Baron (Tom) McNally. “We will continue to consider applications for compensation under the statutory scheme, Section 133 of the Criminal Justice Act 1988, which fully meets our international obligations”.

This leaves victims of miscarriages of justice whose convictions are quashed on a first appeal with no option but to sue for compensation. Despite the tragically early death of Mr Abdullahi the government refuses to right that wrong. His vindication by  the conviction of Jeffrey Gafoor made no difference – he still would not qualify and the government sees nothing wrong with that.

Plain Wrong

“Compensation is paid under Section 133 where a conviction is quashed at an out-of-time appeal, or following reference to the appeal court by the Criminal Cases Review Commission, on the basis that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice”, Lord (Tom) McNally wrote. “Ministers decide whether an applicant is entitled to compensation under Section 133”.

In other words despite the clearest evidence of innocence possible – vindication by the conviction of the real murderer of Lynette White in the case of the Cardiff Five – it makes no difference as they would not meet the requirements of Section 133. Nor does Colin Stagg.

“For those applicants who are to receive compensation, it is then for an independent assessor to decide how much should be paid, based on claims of loss from the applicant” McNally continued. “It is open to an applicant to make a claim in relation to his or her own Article 8 rights-for example, loss of family life. Section 133 fully meets our international obligations to pay compensation in cases of miscarriages of justice”. In fact, it does not.

Absurd

If the obligations were fully met in such cases by Section 133, why had the Discretionary Scheme been introduced at all? The only logical explanation is that there were grave injustices that were not catered for under the Statutory Scheme and that it did not meet the UK government’s international obligations.

Prior to the introduction of the Discretionary Scheme in 1985 the Human Rights Committee of the United Nations (HRC) clearly believed that the Ex Gratia Scheme (Statutory Scheme) did not meet the requirements of Article 14(6) of the International Convention on Civil and Political Rights. Britain steadfastly claimed that the Ex Gratia Scheme was enough. The HRC was not convinced.

Article 14(6) says as follows: “When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him”.

Inadequate

Section 133 was plainly inadequate to satisfy those conditions, which became binding when Britain ratified the Covenant including Article 14(6). The wording of Paragraph 5 (a) and (b) of Section 133 are as follows: “In this section ʻreversedʼ shall be construed as referring to a conviction having been quashed— (a) on an appeal out of time; or (b) on a reference”. In other words where the Covenant did not exclude those who had won a first appeal from compensation, but S133 did and still does.

The potential for serious injustice was clear. An obvious example is the Cardiff Five. Without the Discretionary Scheme, they would not have met the requirements of S133, even though there is no doubt reasonable or otherwise about their innocence. Refusing to compensate the demonstrably innocent is unconscionable and plainly in breach of our obligations under Article 14(6).

The only thing that could be worse is forcing the innocent to prove their innocence to beyond reasonable doubt, knowing full well that the criminal justice system does not declare innocence before compensating under S133 as well. Once again Britain is breaching its international obligations to victims of miscarriages of justice.

Martin Shipton – Chief Reporter of the Western Mail and Echo

The Fitted-In Project is saddened that once again the BBC has chosen to marginalise our work on the Lynette White Inquiry, especially that of our founder and CEO, Satish Sekar. We are very disappointed that tonight’s Panorama programme has chosen to rewrite history. For an accurate record of that history-making case see Sekar’s books Fitted In: The Cardiff 3 and the Lynette White Inquiry and The Cardiff Five: Innocent Beyond Any Doubt, which was recently published by Waterside Press.

Michael Mansfield QC

• “Satish Sekar has been assiduous in following the events surrounding the murder of Lynette White in Cardiff in 1988. From the beginning he questioned the techniques that were used and decisions of the authorities in regard to this case and many of his views – which appeared marginal at the time – turned out to be accurate or close to the truth in a way that has certainly helped the cause of justice and investigation. As the local MP I came to respect and admire his thoroughness and persistence … His contribution has been enormous. … Satish is right to continue to ask questions both in respect of the workings of the criminal justice system and the policies that are pursued in a society that seeks to be governed by the Rule of Law.”

The Rt. Hon. Alun Michael JP, MP

The Fitted-In Project is concerned that the impact of the work conducted by its members has been marginalised. Incredibly this includes Professor Dave Barclay, the former Head of Physical Evidence at the National Crime Faculty. Barclay’s role in correcting the miscarriage of justice that befell the Cardiff Five has never been properly acknowledged by media. Sekar’s latest book explains the pivotal role played by Barclay.

Professor Dave Barclay

Sekar was told immediately after the convictions of the Cardiff Three were quashed to move on to other cases. He refused, seeing the potential for change and understanding that the Cardiff Five had to be vindicated – proved innocent beyond doubt by the conviction of the real killer. Other media left him to fight alone. That included the BBC, which only began covering it again after his work had borne fruit. It ignored both him and the work of The Fitted-In Project in that coverage.

Duncan Campbell

• “The Lynette White murder case, with its long-drawn-out repercussions, has now become one of the most important in the entire history of British criminal justice. This is entirely because of the tireless work and extraordinary insight of Satish Sekar, who has fought for many years to achieve justice for all concerned.”

Bob Woffinden

Satish Sekar pioneered the concept of vindication. The FIP is proud to launch Vindication – The Last Hope of the Innocent today (September 5th). It aims to ensure that the lessons of cases where victims of miscarriages of justice have been proven innocent by the identification or even conviction of real killers are fully learned. There have been six cases of vindication in Britain in the DNA age, but only one had an investigation of what went wrong – a process that was ultimately betrayed. Vindication – The Last Hope of the Innocent is long overdue.

“This is the story of one of the most notorious miscarriages of justice in British history told by Satish Sekar, whose unremitting efforts helped lead to the vindication of the Cardiff Five. They always were innocent, but their freedom was not enough. The memory of Lynette White and her family deserved justice too and that required the conviction of the real killer, Jeffrey Gafoor.This book shows how even a very difficult case can be solved if there is the will to investigate it thoroughly. It details how an awful miscarriage of justice was finally corrected by the conviction of the real killer. Satish’s work was pivotal to achieve this, and he is keen to continue the fight to ensure that the lessons of an extraordinary case are properly learned.”

Steven Bird (Solicitor and Treasurer of CALA)

“I wish Mr Sekar all the best in his work. His passion in ensuring that all available support is directed to those wrongly convicted and incarcerated is admirable.”

The Rt. Hon. Jack Straw (Former Home Secretary and Minister of Justice)

We are delighted to launch Proved Innocent – Vindication. We highlighted the inequity of a system that ignored some victims of miscarriages even though there is no doubt about their innocence. Eight years of refusing to allow the government to ignore an egregious injustice to be ignored resulted in a shameful error being corrected, but too late for Yusef Abdullahi. Despite his innocence being beyond question John Actie is still excluded from the scheme as is Colin Stagg, the original defendants in the Damilola Taylor Inquiry and the family of Phillip Skipper. Disgracefully, the family of victims of crime like Lynette White’s do not qualify either. Proved Innocent – Vindication highlights this affront to justice.

“As a victim of institutional racism I quickly saw the injustice of the case of the Cardiff Five and came to appreciate and admire the work that Satish Sekar put in on that case especially. He cared about all of the victims of that injustice and others too. Twenty years later he continues to fight for justice. His role in that case especially was pivotal – having worked not only to free the innocent, but to bring the guilty to justice. Even after making history in that respect he continues to fight on to bring the system that allowed so gross an injustice to book. There are forgotten or ignored victims of crime. My family has first-hand experience of that. I appreciated Satish’s often unseen efforts to help all of the victims. Sadly, the battle against injustice that brought us together remains to be won.”

Richard Adams (Father of Rolan Adams)

Just Tariffs – Protecting The Innocent is another of our most important projects. We are honoured to launch it here today. It highlights the incredible situation where the truly guilty get treated more leniently than the undeniably innocent for the same crime. Astonishingly this happened after the criminal justice system claimed to have taken into account the fact that such a killer had allowed innocent people to go to prison for his crime. The Law Commission and Ministry of Justice, among others refuse to accept that there is a problem.

“The case of the Cardiff Three, as it is best known, was a miscarriage of justice written in the starkest language. This was the story of three young men convicted of the 1988 murder of Lynette White in Cardiff who were freed on appeal in 1992. It is of particular significance because the real perpetrator of the murder, Jeffrey Gafoor, was finally traced through developments in DNA and, after attempting suicide, confessed to his crime, a crime made worse by the fact that he had allowed others to, as it were, serve his sentence for him. Such vindication, as Sekar explains in this book, is rare. More often, a shadow of suspicion lurks over the innocent man or woman, with unsubtle hints that some of them have ‘got away with murder.’

The Cardiff Three – sometimes called the Cardiff Five, because five men were arrested and charged although only three convicted – was and will remain one of the most crucial cases in the history of criminal justice in the United Kingdom and is worthy of detailed examination. It is not only for what went wrong at the time but for the many other issues it has thrown up in its wake.No-one is better suited to the task of explaining and unravelling the complexities of the story than Satish Sekar whose pioneering work has played a large part in our understanding of the murder and its ramifications. He has ploughed an often lonely furrow in pursuit of the story long after it had slipped from the front pages of the national press. Investigating such cases is a time-consuming and sometimes dangerous occupation.”

Duncan Campbell (Former Crime Correspondent of the Guardian)