Downfall

The downfall of British judge Constance Briscoe has been long overdue. She claimed to have hauled herself up from adversity to sit on the Bench – a role model for aspiring black lawyers, but was she ever the inspiration she claimed to be? The 57-year-old barrister and part time judge was no stranger to controversy, having claimed to have triumphed over adversity in childhood and successfully sued her mother for libel.

She now contemplates her spectacular fall from grace from a prison cell – sentenced to 16 months for intending to pervert the course of justice. She deceived police investigating the offences committed by former Minister Chris Huhne and his estranged wife, the economist wife Vicky Pryce.

Briscoe’s recent crimes have been well reported, but should it have ever come to this? Fifteen years ago the Bar Council failed to investigate whether she was fit to practice over several very serious allegations, including forging signatures. The astonishing thing was the complainant was Briscoe’s mother whom she sued for libel. Her mother’s allegations are now being investigated.

An Ass

“Perjury strikes at the heart of the criminal justice system”, Mr Justice (Sir David) Maddison said when he jailed three witnesses who had lied in a notorious miscarriage of justice – the Lynette White Inquiry. Unlike Briscoe, Mark Grommek, Angela Psaila and Learnne Vilday had an excuse – a good one. They had been browbeaten into telling the lies the police demanded of them. Unlike Briscoe the intent to pervert the course of justice was not their’s, but they alone paid the price.

They had no real choice, but to tell the lies they told and once they had told the first batch, they were boxed in. They had little choice but to stick to a monstrous script  – one that they were later sent to jail for sticking to. Unlike Briscoe they had mitigation – plenty of it. The judge, Crown Prosecution Service (CPS) and even the police that investigated their perjury admitted that they had been bullied. They were subjected to conduct that was in Maddison’s words: “unacceptable in a civilised society”. They were denied a defence by an ass of a law that found this conduct unacceptable, but did not meet the legal standard of duress.

They had perverted the course of justice, but unlike Briscoe only because justice had been so perverted as to force them to commit those crimes against justice. They were then punished for committing the very crimes that they were given no choice but to commit. The law that resulted in their convictions is archaic and unjust. The lawyers and functionaries implementing it must know that In their situation virtually all of us would have done as they did, but it matters not a whit to the law and those charged to uphold it. Where was that same law and its enforcers when these victims of a grave injustice needed protection and support?

Freedom of  Choice

Unlike them, Constance Briscoe freely chose her path to disgrace, but she was treated more leniently than they were. The New Cardiff Three were sent to jail for 18 months – two more than Briscoe who had no excuse. Briscoe was intended to be the star witness against Huhne, but her friendship with Pryce and role in her friend’s revenge almost caused the trial to collapse. Briscoe and Pryce and Huhne – all of whom had privileged lives – had no excuse. The New Cardiff Three really had rotten lives and were vulnerable to the abuse by the criminal justice system that overcame them partly because of the vulnerability to abuse those lives left them open to.

Briscoe claims she overcame serious adversity in her childhood – her family tell a different story. Years after the allegations of her being a fantasist and worse first surfaced, they are finally being investigated seriously. Briscoe may yet face further trials.

Unfit for Purpose

The CPS has had over a quarter of a century to overcome teething problems. But it remains unfit for purpose. It botched the prosecution of police officers over a notorious miscarriage of justice through utter incompetence. It refuses to take responsibility for an appalling job throughout the notorious Lynette White Inquiry – far from the only botched prosecution it has been responsible for.

It prosecuted innocent men in spite of its Code for Crown Prosecutors, even having the chutzpah to justify the decision to prosecute by having secured convictions – now recognised as it should have been back then as one of Britain’s most notorious miscarriages of justice. It ignored the law when failing to appeal the outrageous leniency of the real killer’s tariff. Its performance in that case – and others too – has been a litany of gross failure.

It appointed a Disclosure Officer in a case where it knew that the defendants – former police officers – would seek to exploit disclosure obligations to undermine the trial. Despite this it fails to explain how the trial could have collapsed over disclosure if that lawyer had done his job. It refuses to account for the millions of public resources it has shamefully wasted, but it can prosecute people it accepts were bullied by those police officers and punish them alone for all the flaws its rotten performance in this case exemplifies.

The New Cardiff Three (Mark Grommek, Angela Psaila and Learnne Vilday) perjured themselves and perverted the course of justice, but unlike Briscoe they had no choice and the trial of those accused of forcing them to lie collapsed on an absurd technicality, meaning they evaded the consequences of their actions and uncivilised conduct. Our concern remains the conduct of the CPS. Judges being jailed for perjury is a rare occurrence – thankfully. However, justice must be dispensed evenly. In this case it has been, but what about all the others?

Embittered but Credible

Huhne, admittedly an embittered and ordinarily discredited source, raises important questions about the CPS. “Constance Briscoe has been revealed as a compulsive and self-publicising fantasist”, Huhne said after her conviction. “British justice is likely to be a lot fairer with Briscoe behind bars. If she can make up the witness statement used as the key evidence against me, she is clearly capable of hiding evidence she should have disclosed to the defence in the many cases that she prosecuted for the Crown Prosecution Service. Aggrieved defendants will now seek a CPS review”.

The Bar Council dismissed previous complaints against Briscoe as a family dispute. The judiciary also failed to rein in a judge, now exposed as rogue. The CPS has no plans to investigate cases handled by Briscoe as judge or barrister. Such decisions bring it into further disrepute. Surely now there can be no confidence in her conduct on the Bench and indeed as a barrister. And with the refusal of the CPS to investigate here cases, can there be any confidence in it?

The CPS will not investigate whether she has contributed to miscarriages of justice during her career at the Bar and on the Bench, which lasted almost three decades. The CPS has issued a statement: “We have no plans to review cases involving Constance Briscoe as counsel”. Why not? And why does the criminal justice system allow the CPS to betray justice yet again?

by Satish Sekar © Satish Sekar (June 1st 2011)

Lectures

If we intend to keep handing out lectures on human rights to other governments, then we have to address our own failings. There are seven vindication cases in Britain in the DNA age. Two of them occurred in London, one in Hampshire, another in West Yorkshire, one near the border between Buckinghamshire and Hertfordshire and the other two were in Wales.

For legal reasons the Welsh ones could not be detailed[2] – there were trials in progress in both cases. John Pope had won an appeal, which led to a retrial in Newport before Mr Justice Roderick Evans. I covered that trial. The other trial was the Lynette White Inquiry Police Corruption Trial.

Both Phillip Skipper and the Cardiff Five had been vindicated, but were still facing unwarranted accusations. Nevertheless, the effects still need to be addressed in all vindication cases.

Shameful

Stefan Kiszko is dead and so is his remarkable mother, Charlotte. Both went to their graves without receiving assistance to rebuild their lives or even compensation. By todayʼs provisions, Kiszko was entitled to both, but he was long dead.

He lost over sixteen years of his life for a crime he did not commit and it was patently obvious early in the Lesley Molseed Inquiry that Kiszko was innocent. He could not produce semen, but that was on her clothing and was therefore an early and important clue.

The late Jack Dibb was charged over the Kiszko case as was his then subordinate Dick Holland and a forensic scientist Ronald Outteridge. The charges were dropped by a magistrate after Dibbʼs death. Years later a hit on the National DNA Database resulted in the identification of Ronald Castree as the prime suspect.

Thirty-two years after Molseed was murdered Castree was convicted. He still protests his innocence, but the real victim of the miscarriage of justice is Kiszko. He was wrongly labelled a pervert for exposing himself to school-girls. It later emerged that this was the justification for suspecting him in the first place, but that accusation was false too.

Years later, with Kiszkoʼs life ruined, the girls admitted that they had lied about him for a laugh! This illustrates the dangers of relying on the uncorroborated claims of immature people. The wheels of justice began turning at break-neck speed as a result of that and the subsequent obsession with Kiszko.

Appalling

Kiszko was failed disgracefully by the criminal justice system. His defence layers knew about the semen issue, but failed to present evidence at his trial that would have cleared him beyond doubt. The consequences were dreadful. He was attacked in prison and damaged irreparably by his ordeal. He never recovered and never saw Castree brought to justice.

While his defence lawyers at trial must take the lionʼs share of the blame and deservedly too, the rest of the criminal justice is not blameless either. The evidence against Kiszko was hopeless.

He was a vulnerable man coerced by inadequate interviewing methods into confessing to a crime he did not commit. Progress has been made in this respect. Confessions, especially from such vulnerable people, are not treated as the Holy Grail they once were.

Such advances are signs of an integrated approach to evidence having been developed, but too late for Kiszko. If the scientific evidence had been handled in a competent manner, the truth could have emerged in time to prevent that tragedy occurring.

Sadly it is too late to do anything for Kiszko or his mother, but his experiences must be recalled with disgust and a determination to learn from them. Nothing resembling this must ever be allowed to happen again.

Investigative methods must be fully integrated with advances in science and also current forensic science techniques. Rules of evidence must be adapted too. For evidence of innocence to be available early in this process, yet take sixteen years to emerge, while an innocent manʼs life was destroyed, is utterly unacceptable.

Post-Conviction Relief

Sean Hodgson, at least is still alive and eligible for both compensation and the inadequate after-care provided by the government through the Miscarriages of Justice Support Service (MJSS),[3] a misnomer if ever there was one. Hodgson served nearly three decades in prison for the rape and murder of Teresa di Simone. David Lace was the real perpetrator. His post-conviction confession was found to be unreliable, yet discrepancies in Hodgsonʼs account and the lack of scientific evidence were discounted. His new lawyers were told that samples to test no longer existed, but eventually testable material was located and Hodgson was cleared. Vindication followed soon, as Laceʼs confession was tested against scientific evidence. His guilt was proved, but Lace was long dead. Hodgson qualifies for assistance from the MJSS and is eligible for compensation too. Of seven vindication cases in Britain, Hodgson alone is eligible for both and alive to claim it.

Britainʼs Supreme Court recently produced a definition of a miscarriage of justice with reference to a compensation claim by Andrew Adams, but regardless of it, many victims of miscarriages of justice including the vindicated remain excluded from eligibility for compensation and after-care too.[4] There is no doubt that Colin Stagg is and always was completely innocent of any involvement in the murder of Rachel Nickell. It is hard to find a more blinkered investigation than that one. The honey-trap was more in keeping with Cold War intrigue than legitimate investigation of crime, yet it was attempted. It was quite rightly thrown out by Mr Justice (Sir Harry) Ognall in 1994 after Stagg had been in prison on remand for the best part of a year.

Stagg emerged to a vitriolic whispering campaign, fuelled among others by disgruntled police officers who felt aggrieved that the evidence they had gathered was not accepted. The honey-trap officer, referred to as Lizzie James, was compensated before Stagg after it affected her career – she left the police and country too over it. There never was any credible evidence against Stagg; it had to be generated through those unethical methods. It also helped to end the career of Paul Britton; he deserved nothing less. Despite his efforts to distance himself from the scandal, he is not a victim in this and nor are the officers who allowed that honey-trap to proceed and nor is the CPS either.

An integrated approach to crime investigation could have prevented the whole fiasco from happening. Stagg was not a likely killer. There was nothing in his criminal record or character traits that justified suspecting him at all and there was no scientific evidence against him either. Meanwhile, the real killer, Robert Napper, should have emerged as a suspect far earlier and at least two lives could have been saved if a rape allegation had been investigated competently. DNA testing eventually resolved the case beyond doubt by conclusively linking Napper to Nickellʼs murder, but this was a catalogue of errors in both investigations and that continued after resolution too.

Stagg has been paid substantial compensation and rightly so, but were the same thing to happen now, he would not be eligible. That is shameful, but it is in some ways worse that he does not qualify for assistance to rebuild his life. Any definition of a miscarriage of justice that does not include Colin Stagg, is an affront to common sense and justice too and any scheme to assist victims of miscarriages of justice to recover from their ordeal that does not help him is a disgrace. But it does not stop there.

In 2006 four young men should have received an apology from the Commissioner of the Metropolitan Police. A crass error by forensic scientist Sian Hedges was discovered during a review of the Damilola Taylor Inquiry. Original suspects Ricky and Danny Preddie had been eliminated due in part to the absence of blood evidence on their property. It later emerged that a training shoe belonging to Danny had clear traces of blood on it – the photograph proved it.[5] The blood was DNA tested and found to have been shed by Taylor. Fibre evidence also linked them to the 10 year-oldʼs death. The Preddie brothers changed their account of their movements as a result, but were convicted of manslaughter in August 2006.

Four years earlier four boys were acquitted by judge or jury. The case against them was a travesty. A witness referred to in court as Bromley was utterly unreliable to put it mildly, but there were other signs that something was badly wrong as well. A trawl of Feltham Young Offenders Institute produced so called evidence, some of which came from witnesses of the lowest possible order. Instead of helping those boys to rebuild their lives – one of them has been deported as a crime risk – they have been left to fend for themselves and are denied even an expression of regret, let alone apology. The effect the wrongful accusation of murdering Damilola has had on his life and subsequent conduct has not been considered on that decision or on the future. He is an adult now, living in the Democratic Republic of Congo, a country that is far from stable and to which he has little or no connection to any more, as he left it aged nine.

[1] An indication of the importance of an integrated approach can be seen in Equality of Arms, at http://fittedin.org/fittedin/?p=690  for more on this case and others too.

[2] This article was part of a presentation made at a conference to medical practitioners, which included forensic    pathologists, in 2011. At the time two trials were taking place – the Lynette White Police Inquiry Police Corruption Trial and the retrial of John Pope for the murder of Karen Skipper. Both of these re vindication cases and ones that FIP has taken an interest in. Pope was subsequently convicted. The Police Corruption Trial was halted on the orders of the judge, following serious failures by the prosecution. This is ironic as the CPS imposed conditions on others, especially myself and Fitted-In while displaying extremely shoddy standards itself, which should have led to serious consequences for it. This is one of the reasons we still demand a Truth and Justice Commission into the whole of this case, rather than the deeply flawed processes that have occurred so far.

[3] Hodgson died in October 2012, aged 61.

[4] The sadly defunct Fitted-In Journal covered this issue in A Deafening Silence. Regrettably other media, including the Guardian and New Statesman, insist on ignoring this scandal, while claiming that it is the type of story that is important to them. We will republish it soon.

[5] See The Partial Truth Truth – Errors of Judgement at http://fittedin.org/fittedin/?p=743 for our coverage of this issue.

1 Mr Michael is now the Police and Crime Commissioner for South Wales. The position replaced Police Authorities with the exception of London, which transferred Police Authority powers to the Mayor of London.

]]> https://fittedin.org/fittedin/?feed=rss2&p=1032 0 https://fittedin.org/fittedin/?p=924 https://fittedin.org/fittedin/?p=924#comments Sat, 17 Jan 2015 17:59:52 +0000 http://fittedin.org/fittedin/?p=924 Read more]]> False Impressions

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.

Coded

For the last quarter of a century the Crown Prosecution Service (CPS) was supposed to have provided independent scrutiny on decisions over whether or not to prosecute. It had powers to discontinue prosecutions, which it has used, and it had guidelines that ought to have ensured that the Cardiff Five at least never stood trial.

Hywel Hughes was the Crown Prosecutor in this case. He took the decision to prosecute and did so in spite of the Code for Crown Prosecutors that provided guidance on whether the evidence was of sufficient quality to prosecute with a realistic prospect of conviction. Outrageously the CPS has tried to defend its decision to prosecute by pointing out that it secured convictions.

Culpable

Hughes was also responsible for deciding to prosecute the Newsagent’s Three (Michael O’Brien, Ellis Sherwood and Darren Hall) – another high profile Welsh miscarriage of justice¹ – despite over 100 breaches of PACE and other serious failings. Examination of that Code in the Lynette White Inquiry leaves no room for doubt that it was a prosecution that should never have been tolerated.

Securing convictions in a case now acknowledged, and actually obvious even at that time, to be a notorious miscarriage of justice must never be seen as a justification for a prosecution that plainly did not have credible evidence to justify proceedings. The CPS had a responsibility to halt this prosecution in its tracks and an ongoing discretion to stop the prosecution at any stage before wrongful convictions were secured amid a trail of devastated lives.

Pathetic

Instead, it failed to do so in a case where there is no credible doubt about innocence and acquiesced meekly when those charged with causing that miscarriage of justice stood trial and were allowed to claim that the Cardiff Five were in fact guilty when the evidence proved that they were not. The CPS failed to present the clearest possible evidence of their innocence adequately, despite having had this proof from a very credible source – a respected forensic scientist. That is shameful. The irony of this should not be lost.

Allowing the Cardiff Five to stand trial on evidence that would have been rejected as implausible had it been offered as a script to any policing drama is a failing that taints its claims of independence even now almost a quarter of a century later. It had the opportunity to consign the discredited Penderyn methods to history and failed to do so miserably.

Shameful

Its refusal to do its job adequately resulted in other miscarriages of justice that could have been prevented. The CPS must bear the ultimate responsibility for that. Had it refused to prosecute the Cardiff Five the police would have had a clear message – the Penderyn methods (see The Blame Game at http://fittedin.org/fittedin/?p=918) will no longer result in prosecution, let alone convictions.

That in turn would have meant that police would have been faced with a stark choice. They could cling to the outdated methods and hope for the best (worst really), or they could secretly fabricate evidence, telling nobody and hope to get away with it.

Alternatively, they could change their methods, relying on modern investigative techniques and advances in forensic science, resulting in more reliable evidence and a better chance of securing convictions that deservedly stick. Hughes’ failings and those of the CPS robbed society of an efficient and just criminal justice system almost 25 years ago. For that it must receive a large slice of the blame, but there are others deserving of condemnation too.

Bluff

Yusef Abdullahi had a strong alibi. It was treated not as a possible indicator of innocence, but as a guide to what the prosecution had to be undermine. It was, in short, seen as nothing more than an inconvenience. Disclosure obligations were even used to bluff the defence into not calling a witness the CPS and Crown must have known supported Abdullahi’s innocence.

And Tony Paris too had an alibi that common sense verified and the sole corroboration against him was a prison informer whose story stretched credibility to absurd lengths. Ian Massey had been looking for a deal a month earlier. He didn’t care who would have to pay for his ticket to a reduced sentence. Massey was Massey, trying his luck as he had before.

He tried claiming that he had information on a notorious double murder in Wales before Paris had even been arrested, but this information was kept from Paris’ lawyers. Dyfed-Powys Police were not so easily impressed with Massey. They rejected Massey’s overtures on that case – it was eventually solved with the jailing for life of John Cooper, who also committed another double murder in that jurisdiction four years later.

Incredible Evidence

There never was credible evidence to justify the arrests of the Cardiff Five and the more the police and Crown tried to shore up the case the more leaks sprung. Rather than review the case they had as the CPS was bound to do, only evidence assisting the prosecution was processed. Inconvenient evidence was marginalised at best.

Instead of being thrown out as it should have been, a palpably unreliable case resulted in convictions that disgrace every reasonable concept of justice, but it would be a mistake to blame just the police or defence lawyers for such an appalling prosecution.

There is plenty of blame to go round and shamefully only one institution has held its hands up and accepted responsibility for its role in this travesty of justice – South Wales Police.

The Review

The review of the error made by forensic scientist Sian Hedges, then of the Forensic Science Service (FSS), in the Damilola Taylor Inquiry after the conviction of the Preddie brothers (Ricky and Danny) for the manslaughter of Taylor served a purpose – a log and dishonourable one. It took the previous miscarriage of justice off the agenda for a while at least.

It was conducted by emeritus professor in forensic science at Strathclyde University Brian Caddy and Alan Rawley QC. Both were appointed by the Home Office because Hedges missed crucial blood-staining that originated from Taylor on clothing and footwear of the Preddie brothers during the original inquiry.

Terms of Reference

The terms of reference of the review were: to conduct a review of the forensic examination of evidence conducted by the FSS during the Damilola Taylor Inquiry; to establish an agreed set of facts and time-line of the FSS examination of this evidence and to make recommendations to the Home Secretary on whether re-examination of forensic evidence in other comparable cases is required.

It was also tasked to make recommendations to both the Home Secretary and board of the FSS on whether changes are required to its examination procedures, recruitment, training and management of forensic scientists by the FSS. Finally, it had the power to make whatever recommendations it deems necessary on the future role of the Forensic Regulator in overseeing applicable standards to all suppliers of forensic services to the criminal justice system within the UK.

ʻIndependentʼ

However, the ʻindependentʼ review did not specifically investigate whether Hedges committed perjury in the trial earlier this year that resulted in the acquittal of Hassan Jihad on all charges and the Preddie brothers of murder and robbery. It is also unsatisfactory as it does not view the case as an integrated whole.

The Sentamu Inquiry, which was chaired by the Archbishop of York John Sentamu, looked at the treatment of vulnerable witnesses in isolation and this did the same regarding the scientific evidence.

The review did not consider how the Damilola Taylor Inquiry was mishandled in the first place. Hedges’ error does not explain how the original defendants were allowed to stand trial in 2002. Despite being obliged to deliver best value, neither the Metropolitan Police, nor its police authority have any plans for an inquiry into what went wrong – errors that almost derailed justice permanently.

We should be told how relying on a clearly unreliable witness (Bromley) without testing how such a witness would stand up to cross-examination delivers best value to the public, rather than placing an inexcusable drain on public resources that could have been put to far better use. The role of the CPS needs to be scrutinised thoroughly.

Lack of Interest

There seems to be no interest to establish what went wrong in the original investigation beyond the scientific evidence. That will not suffice. Had wrongful convictions been obtained in the original trial through highly dubious methods there would have been no cold case review which discovered Hedges’ error and the truly guilty Preddie brothers would never have been brought to justice.

The original inquiry was riddled with errors and questionable conduct which included sending a round robin invitation to inmates at Feltham Young Offenders Institution to make incriminating remarks about the original defendants that might be used to convict them. There was a review into the use of child witnesses, but the original defendants were not invited to participate. They have never been given the opportunity to participate in these inquiries, let alone one that looks at the whole case in the light of knowledge that is now available.

]]> https://fittedin.org/fittedin/?feed=rss2&p=749 0 https://fittedin.org/fittedin/?p=747 https://fittedin.org/fittedin/?p=747#comments Fri, 21 Nov 2014 11:41:32 +0000 http://fittedin.org/fittedin/?p=747 Read more]]> by Satish Sekar © Satish Sekar (January 31^st 2009)

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.

Inconvenient Evidence

The case of the Catford Three (Colin Lattimore, Ronald Leighton and Ahmet Salih) is now acknowledged as of Britain’s pivotal miscarriages of justice – one that changed the criminal justice system. Their alibis – Lattimoreʼs was particularly strong – were treated as little more than an inconvenience to be overcome and this appears to explain the forensic pathologist Professor James Cameronʼs sudden change of opinion regarding the time of death.

Outrageously, Cameron waited until the trial was under-way to inform the defence during his evidence that he had changed his mind. Lattimoreʼs lawyers had prepared their defence of alibi on what they had been informed was the time of death that the police and prosecution were relying on. It was all they could do.

Ambush

They had no time to prepare for this change in the prosecution case or even get expert opinion to counter it. They were ambushed by Cameronʼs shifting of the goalposts at trial. It was outrageous and the judge should not have allowed it and nor should the Court of Appeal. Twenty years later the Court of Appeal famously said that it does not allow convictions secured by ambush in the shameful case of Judith Ward.

In its way this was worse as it was not even concealed – it was brazen. The court actually witnessed the ambush in progress and not only tolerated it, but rewarded it with the prize the prosecution sought. After an 18 day trial in November 1972 Lattimore was convicted of manslaughter due to diminished responsibility and Leighton of murder – Salih of the offences he confessed to. Lattimore and Leighton were convicted of the other offences as well.

Outrageous

In November 1972 the three youngsters began their sentences. There was no indication that this would become one of the most important and notorious miscarriages of justice in British history – one that would command two major enquiries and usher in pivotal changes in the law, but there should have been. Cameronʼs shifting of the goalposts on the time of death was outrageous. It destroyed the alibi work the defence had conducted.

It was obvious that Cameron had not changed his mind by such a considerable amount of time when he gave evidence, so when had he come to that conclusion and why? There was another obvious problem with the previous time of death – the fire evidence. If the original time of death was correct it meant that the murderers had stayed around for almost three hours and then set the fire. Why would anyone do that?

Fair Trial?

Changing the time of death neatly avoided that question and avoided the obvious conclusion – the fire had nothing to do with the murder of Maxwell Confait whatsoever. Cameronʼs conduct had rendered a fair trial impossible. The trial should have been stopped immediately and the issue resolved before any retrial occurred. It did not. The fact that this was allowed to happen to children – treated as adults by the law – makes it even more unconscionable.

The Judgeʼs Rules were amended on the treatment of child suspects and on the vulnerable – then termed ʻeducationally sub-normalʼ, but nothing was done about Cameron’s late change of opinion. The Police And Criminal Evidence Act was a direct response to this case and the Prosecution of Offences Act facilitated the establishing of the Crown Prosecution Service as a result of the Royal Commission on Criminal Procedures as well.

Shamefully, nothing was done to prevent expert prosecution witnesses ambushing children or even adults at trial. Lord Justice James, delivered the decision of the Court of Appeal in July 1973. It proved to be yet another wretched judgement betraying the arrogance and complacency of a system that believed itself infallible.

“There was no misdirection in the summing-up to the jury and no representation of facts which can be relied upon as justifying the grant of leave to appeal”, said James, regarding Mr Justice Chapmanʼs summing up, but before long it would emerge that there were certainly facts that could justify not only granting leave to appeal, but quashing the convictions which had been secured by contemptible means.

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.