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

Introduction

There can be no doubt that forensic sciences – and I use the plural deliberately – have advanced in leaps and bounds over the last quarter of a century. The programme CSI is science-fiction, that is fiction based allegedly on forensic science, but it does illustrate the importance of my main theme – the need for an integrated approach between these sometimes competing sciences and also between the sciences and the needs of lawyers within the adversarial legal system.

However, there is another urgent theme that must be addressed – the treatment of the innocent and what role medical practitioners have in helping to resolve the many issues that they face, but of course, those issues come later in the process. The first stage is the use of forensic sciences as an investigative tool that can correct or hopefully even prevent miscarriages of justice, which would avoid the need for any restorative justice.

In the past, competition between scientific disciplines and even the legal process caused unnecessary difficulties that contributed to the miscarrying of justice. That illustrated the need for an integrated approach between these disciplines and lawyers too, especially as defendants are held responsible for the conduct of their defence through their instructions. Today this means that they have to be aware of forensic science. With fingerprints and DNA that’s not a problem, but what about other disciplines? Forensic entomology, pathology, botany, fire-analysis, data-logging and pig-burning are equally important forensic sciences for instance?

Many may struggle to know who to instruct regarding such sciences, and in some cases what use it could be and that includes scientists or lawyers, partly because they are specialists, who know their area of expertise and try to avoid straying from their comfort zone. Therefore, I suggest, cases require an overview conducted by a forensic scientist, or expert, who can identify any forensic science that could assist to get to the truth and which expert or experts are best-equipped to provide answers.

The adversarial system suffers from the lack of an inquisitorial element, which can allow the truth to fall between the competing interests of prosecution and defence lawyers. The investigative process is of course meant to be inquisitorial, but what is the experience in practice?

The police investigate crimes, but they perform a task that does not include an objective investigation of the possibility of innocence, especially after arrest. It’s not their function. By that stage both they and the Crown Prosecution Service (CPS) have invested their reputations in proving the guilt of the defendant(s), so they have no interest in producing evidence of innocence. On occasion such evidence has been suppressed if discovered.

Once they have a confession and the CPS has charged the defendant, they often see no need to investigate further through forensic sciences, especially in the current economic climate, but this can be a false economy. The extraordinary case of Neil Sayers, (which will be covered in the forthcoming series of articles An Integrated Approach – Righting Wrongs) demonstrates this.

Forensic sciences can offer tests which could resolve issues in cases, but the competing interests at trial can lead to tactical decisions not to conduct tests or instruct experts. But it is far from one way traffic. Defence lawyers oppose the police and prosecution and have their own vested interests too. They also choose not to get certain tests conducted, if they fear that it could prove the opposite of what they want to show.

The end result – as happened in Sayers’ case – is that some tests that could have resolved vital issues were not conducted and experts were not instructed. This is not saying that he is necessarily innocent – just that he and anyone in his position should have the right to have their claims of innocence tested rigorously as the opportunity existed, but neither prosecution nor defence did so.

Everything changes after conviction, as it did for him. The tactical considerations governing the trial process no longer apply and the convicted defendant no longer has much to lose from instructing experts and getting tests conducted, but the law will not allow them a second bite of the cherry and that is entirely reasonable at least in certain circumstances. However, there are cases where unreasonable expectations are placed on defendants to the point that some did not get a first bite as they did not understand the significance and potential of forensic sciences to help them and the jury too.

Disorder

These developments and techniques demonstrate the need for an integrated approach between the various forensic science disciplines and also the criminal justice system as a whole. This theme recurs in Sayers’ case, but it would be a mistake to think that this only happens in the most serious cases like murder. It can and has happened in far lower profile ones. For example, it happened to a man facing trial for grievous bodily harm and violent disorder when he and his friends were the victims of a cowardly racist attack.

Three black men were racially abused and then attacked by a far larger group of racist thugs in Norwich in April 1989 – the Hillsborough tragedy occurred on that very day. Once the attack got serious and involved weapons from a nearby building site, Brian Moore, Terrence Alexander and Carlos White felt that they had no option but to defend themselves. They were joined in their fight by four white men who stumbled across the attack and helped the three black men to try to prevent them getting hurt.

Moore and his friends defended themselves with available weapons too and reported the incident to police later. Incredibly, they too were charged. That cost the CPS the witness testimony of the victims against the perpetrators, as the victims had been turned into defendants themselves, rather than witnesses by an outrageously crass decision by the police to charge them and another by the CPS to prosecute them. The same thing happened to the white men who helped Alexander, Moore and White.

The credibility of the black victims and the white men who helped them had been compromised as witnesses before the jury by those ludicrous decisions and it soon became clear just how unjust the decisions had been. The leader of the racist thugs, Jonathan Galbraith, was among those acquitted on the orders of the judge, His Honour Judge Binns, without being required to provide a defence as a result of those decisions.

Shortly afterwards, the evidence of Galbraith’s central role in the shameful events of that afternoon emerged. While Galbraith and other members of his gang savoured their ill-deserved freedom, a victim of the attack, Moore, was convicted of violent disorder and sentenced to two years imprisonment. White was acquitted, despite admitting hitting Galbraith on the head with a piece of wood, so what was the difference between Moore’s case and White’s for example?

That emerged during Moore’s appeal in July 1991, almost five months after he was incarcerated. The only evidential difference was that Moore allegedly banged Galbraith’s head on the pavement. There were witnesses for and against such an interpretation, but there was an obvious issue that has never been satisfactorily resolved. If Moore had banged Galbraith’s head on the kerb, surely the medical records would unequivocally prove that such an attack had taken place.

The jury heard no evidence about this. Galbraith had some head injuries. Moore had placed himself near Galbraith, but insisted that all he did was drag him out of the road, saying that Galbraith’s head may have hit the pavement, but it certainly was not banged intentionally, or violently. If true, he would be supported by the medical records, but Moore’s defence at trial kept Galbraith’s medical records out of the hands of the jury, because they believed that they would not have been helpful.

They may have been right at that time, but hindsight is 20/20. After Moore’s appeal succeeded on sentence only – they didn’t appeal on conviction, even though Moore maintained that he had acted in self-defence – the evidential reason for his conviction emerged. It had to have been based on the alleged head-banging incident, but yet again it demonstrated the need for an integrated approach to the case as a whole, especially between witness evidence, the judicial process and medical science.

Some of Galbraith’s hospital records had been disclosed, but the significance was not only not known at trial, it was impossible to predict. Moore’s case hinged entirely on this alleged incident. If he had banged Galbraith’s head on the pavement, one of two things should have happened.

Firstly, he should have been convicted of grievous bodily harm – he was charged and acquitted of that offence – and secondly the medical evidence should have been consistent with that accusation. How could violently banging a then defenceless man’s head on a pavement be anything less than grievous bodily harm and how could any lawyer be expected to think anything else?

Consequently, it was reasonable for Moore and his defence to believe that he had been cleared of banging Galbraith’s head on the pavement, when he was acquitted on the orders of the judge of grievous bodily harm. The first they could have known otherwise was when the appeal judges based his violent order conviction on that alleged incident.

The use of this incident to justify the conviction raises issues of double jeopardy at a time when it was an inalienable principle of British justice. Moore was not seeking a second bite of the cherry – he wanted a first bite. Legal aid was obtained to instruct the forensic pathologist, Dr. Iain West, and his conclusions showed that while Galbraith had head injuries, there was nothing consistent with violent head-banging on the pavement.

Moore’s case languished at the Criminal Cases Review Commission (CCRC) while the case against him seemed in tatters. He was free, so his case was not considered a priority. It remained gathering dust, unable to progress to review. West died in July 2001 without having been contacted by the CCRC, which eventually instructed an expert whose conclusions were vague.

Its expert would not rule out the possibility that head-banging could have taken place, but did not say that it had. The CCRC could have requested all of Galbraith’s medical records – it would have had a better chance of getting them – and then tackled the dispute between the experts, especially as West could no longer defend his opinions.

The dispute between West and the CCRC’s expert was not resolved. With West sadly deceased, it surely should have instructed other experts to resolve the dispute between the experts. Instead the CCRC moved the goalposts. Having decided that the evidence did not exclude the possibility of head-banging entirely, regardless of the strong opinion of West that it did and failing to resolve that, the CCRC claimed that the conviction could have been obtained by threatening gestures and behaviour allegedly made by Moore. It failed to say what these were and when they were allegedly made and what the evidence that suggested it had happened was.

Moore deserved a fair examination of his case to establish if there was realistic prospect of the Court of Appeal intervening. He did not get that. Shorn of the head-banging incident, the justification for the conviction provided by the three appeal judges had gone, as according to them, there is nothing else to distinguish Moore from his fellow victims of the racist attack, so surely there was a reasonable prospect that the Court of Appeal would intervene if asked to on the basis of new evidence regarding the unlikelihood that it had happened at all.

The Crown could not provide any medical or scientific evidence at all supporting its claim that it had occurred.  Moore’s case may not seem that important in the context of the others that resulted in sentences for more serious offences, but it is. It has deprived Moore of his good name and prospects. Nothing can restore his career now – an aspiring television presenter at the time, his career was wrecked by a case that yet again lacked an integrated approach to the law and medical science and witness evidence, which suggests that Moore’s conviction should not be considered safe.

At the very least the CCRC can legitimately be expected to resolve differences between experts in cases like this, especially as the solution is so obvious. Medical practitioners sometimes have powers of life and death. That’s obvious, but occasionally, so do forensic scientists, which may not be so clear. The classic example of this is the man termed by some ‘The Father of Forensics,’ Professor Sir Bernard Spilsbury.

It is clear from analysis of his work that he was prone to allowing his testimony to go beyond the limits of his science and for his prejudices to trump the interests of justice.[2] Nevertheless, in his day, Professor Spilsbury’s reputation was second to none, sending many to the gallows, but perceptions changed and had begun to do so even in his lifetime.

Perhaps fearing exposure and disgrace as his powers waned, Spilsbury took his own life in 1947. He is now seen by no less an authority than the eminent retired forensic pathologist, Professor Bernard Knight, as ʻa very dangerous manʼ.’

The consequences of Spilsbury’s reputation were extremely dire for some.[3] However, he made forensic pathology respectable and solved many mysteries – some of which were the most famous of his time.[4] Hawley Harvey Crippen, Frederick Seddon, George Joseph Smith, Major Herbert Rowse Armstrong and Alfred Arthur Rouse all went to the gallows on Spilsbury’s say so, but perhaps the most important of Spilsbury’s victims was Norman Thorne – executed for a crime he may well have been innocent of.

He coined a phrase that offers a stark warning of the risks of poor science and over-reliance on reputations, built on false foundations. “I am a martyr to Spilsburyism,” Thorne said days before he was hanged for a crime that probably never occurred – suicide was at least a possibility even if it suited Thorne’s convenience.

Thorne’s denunciation of Spilsburyism was years ahead of his time, but it should be remembered and today’s expert witnesses must also be aware of the consequences of inflexibility in their evidence. Once Spilsbury had made up his mind, nothing could change it, including evidence, which sadly finds an echo in some of today’s experts in many jurisdictions.

[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 review of Andrew Rose’s book Lethal Witness: Sir Bernard Spilsbury, Honorary Pathologist at http://www.telegraph.co.uk/culture/books/non_fictionreviews/3667415/An-over-celebrated-pathologist.html gives a flavour of the controversial pathologist’s methods.

[3] The Fitted-In Project will be publishing a pamphlet on the consequences of Spilsburyism and its legacy in 2016.

[4] For further information on the former Fellow of the RSM see http://www.timesonline.co.uk/tol/news/science/article5429780.ece

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=968 https://fittedin.org/fittedin/?p=968#comments Tue, 10 Feb 2015 10:49:17 +0000 http://fittedin.org/fittedin/?p=968 Read more]]> January 20^th 2015

Radio Cardiff

Part One Satish Sekar with Georgina Sammut and Shawty

Satish Sekar discusses the foundation of The Fitted-In Project and why it was re-established on this Community Radio programme. He explains why the vindication of the Cardiff Five was necessary. Sekar details the methods used to secure convictions and consequences of it. He comments on why he holds the Crown Prosecution Service (CPS) more responsible than the police for the wrongful prosecutions of the Cardiff Five. Sekar credits the work of Professor Dave Barclay in the eventual vindication of the Cardiff Five and also South Wales Police in correctly solving the murder of Lynette White. He details how they detected Gafoor.

Part Two Satish Sekar with Georgina Sammut and Shawty

Sekar explains the arrest of Jeffey Gafoor and the significance of vindication. There are currently seven such cases in Britain. He explains that there are more victims of these cases and that there has to be processes to explain how justice miscarried. Sekar details the trial of the core witnesses. He calls them the New Cardiff Three, He explains the role of the CPS in another vindication case, that of Phillip Skipper, for the murder of his estranged wife, Karen. It gifted a defence to the real murderer, John Pope, who repeatedly accused Skipper of being the murderer after Skipper had been acquitted and had sadly died. Sekar details how Barclay demolishes the prosecution scenario in the Lynette White Inquiry and why he should have been a witness in the collapsed trial, before explaining why Sekar was prevented from attending the Police Corruption Trial and its consequences. He explains his controversial view that the CPS, rather than South Wales Police are more responsible for the miscarriages of justice and how they have evaded taking responsibility for any of it. Sekar also calls for fiscal responsibility. He says both the IPCC and HMCPSI processes were inadequate.

Part Three Satish Sekar with Georgina Sammut and Shawty

In the third part of these interviews Sekar explains the process of trying to secure accountability from the CPS over the whole case. The CPS refused to answer his complaint – a process that has been ongoing since 1993! He explains how its own Code for Crown Prosecutors proves the Cardiff Five should never have been prosecuted. Sekar details why the CPS has to be held responsible and that Alun Michael has asked questions of the CPS as well. He then explains some projects that The Fitted-In Project conducts and the scandalous treatment that all the victims of vindication cases have been subjected to. Sekar then makes his case for fiscal accountability.

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.

Three days before she was due to stand trial accused of conspiracy to pervert the course of justice Eleanor de Freitas committed suicide. Last year she had accused a man¹ of rape. The investigating officers believed her, but lacked sufficient evidence to prosecute him. The Metropolitan Police still categorise it as rape, but they told her that they did not think there was enough evidence to prosecute her alleged attacker.

De Freitas had mental health issues. She had previously been sectioned. She accepted the decision not to prosecute him. The man that she had accused did not. He decided that his only option to clear his name was a private prosecution against her. He gathered texts and CCTV for that purpose. This was the basis of the decision to prosecute de Freitas.

According to de Freitasʼ father the man harassed her with texts and voicemails. Unusually the Crown Prosecution Service (CPS) decided to take over that prosecution. It insisted that the police provide a disclosure officer and claimed that new evidence surfaced, justifying prosecuting de Freitas. It also insists that there was new evidence that the police had not considered.

Last November Allison Saunders succeeded Sir Keir Starmer as Director of Public Prosecutors. Saunders provided a robust defence of the CPSʼ actions in this controversial and tragic case. Saunders insists that prosecuting de Freitas met both criteria – that there was sufficient evidence to offer a realistic prospect of conviction and that it was in the public interest. However, the CPS that she inherited operates in a culture of secrecy over how it reaches decisions on whether to prosecute or not.

Dark Ages

Previously the CPSʼ Code for Crown Prosecutors outlined the criteria that prosecutors needed to be aware of when making decisions on whether there was enough credible evidence to pass the realistic possibility of securing a conviction test. Back then the CPS was open about what the criteria were, although it stressed that these were only guidelines. It also defined what prosecutors should be aware of when deciding whether prosecuting was in the public interest or not.

For further information on these criteria in an era when despite its faults – and there were many – the CPS believed in openness refer to Satish Sekarʼs book Fitted In: The Cardiff 3 and the Lynette White Inquiry² at http://fittedin.org/fittedin/?page_id=15.

That Code meant that it was possible to compare the evidence relied on in a case to the requirements of the Code and judge whether it was right to prosecute or not. It also mandated its prosecutors to be aware of lines of defence and how that would impact on the possibility of securing a conviction. This plainly applied in de Freitasʼ case, but does that apply in the decision-making process any more?

The decision to prosecute de Freitas would surely have benefited from such openness on the decision-making process of the CPS. Crown Prosecutors may still apply the sufficiency test in the decision-making process, but without access to those criteria, how can the public judge the conduct of the CPS and how can they hold the CPS responsible for its decisions.

The previous Code would have meant that the decisions made in the de Freitas case could have been understood and assessed with access to the knowledge needed to make an informed decision. Instead, the public are left in the dark, depending on crumbs offered by the DPP. It could and should have been so different.

Extraordinary

The extraordinary case of Gary Mills and Tony Poole is in the news again. After fourteen years of wrongful imprisonment, they were freed in June 2003 – the last seven because senior judges did not know the law or ignored it. The main reason for the quashing of their convictions was the cumulative effect of the lack of integrity of the inquiry into the controversial death while in police custody of Hensley Wiltshire in 1989.

More than four years ago they lodged a complaint with the Crown Prosecution Service (CPS) alleging criminal conduct by police. They claimed that the number two in the inquiry, former Detective Inspector Trevor Gladding, had perverted the course of justice and perjured himself. Allegations of serious malpractice were made against other officers as well.

Two different sets of appeal judges: a high court jury¹ and a former Lord Chief Justice were far from impressed with Gladding’s conduct. Eventually, the Criminal Cases Review Commission also declared itself dissatisfied with the effect that several instances of police malpractice could have had on the safety of the convictions and referred it back to the Court of Criminal Appeal, which heard it in 2003.

Inadequate

The CPS referred their complaint for investigation, which was picked up by the Independent Police Complaints Commission (IPCC) in April 2004 and would become a major test of the independence of the new body. Nearly four years later it issued a provisional report dismissing the complaint.

“The investigation report belongs to Gloucestershire Constabulary and it is for them to decide what can be released into the public domain,” said IPCC spokesperson David Nicholson.

I raised eleven questions with them. He responded with: “It is for Gloucestershire to decide whether and how they answer.” To date, the IPCC, CPS and Gloucestershire Police have not answered the queries. In other words, the IPCC and CPS think it is acceptable for the bodies complained about to exonerate themselves and decide what information should be allowed into to the public arena. So much for openness and integrity.

Legacy

Their complaint was a legacy case, meaning it was investigated under the old rules, which meant that independent investigators were not used and there was no requirement of disclosure of the report. The IPCC has done itself no favours at all.

“The matter has now been concluded and the complaints were unsubstantiated,” said Nicholson. Such a comment is quite frankly ludicrous and merely emphasises the unsatisfactory nature of the IPCC.

The IPCC’s finding contradicts all previous inquiries including the much criticised investigation for the Police Complaints Authority (PCA) conducted by former Chief Constable of Durham Police George Hedges in the early 1990s.

Culture of Secrecy

The IPCC was established to counter the culture of secrecy surrounding complaints against police. This shameful decision and refusal to make its full findings public will taint its claims of independence for years to come.

The Commissioner in charge of this complaint was Rebecca Marsh. She wrote: “On the evidence available, the IPCC is not satisfied that there is a realistic prospect that the conduct of the officers complained of fell below the required standard. We are therefore minded to conclude that misconduct proceedings cannot be justified.”

And this in the case that the then Lord Chief Justice, Lord Woolf said: “Almost every aspect of this prosecution is tarnished.”

Nevertheless, we now know that perjury and perverting the course of justice do not constitute an abuse of due process of law² and that such conduct does not fall below the required standard of conduct from police officers,³ but that it is not libellous to say that Trevor Gladding perverted the course of justice and perjured himself.⁴

“We agree that this has taken a very long time to resolve,” said Mr Nicholson. “The setting up of the IPCC was because of frustrations with the ‘previous system’ and the length of time that cases took to resolve.”

The average IPCC investigation in the relevant region takes 166 days. This investigation took almost four years to reach incredible conclusions at great expense in a report that will almost certainly never see the light of day. The name has changed, but judging by this decision not much else.

Apology?

Michael O’Brien’s quest for an apology for over eleven years of wrongful imprisonment has so far been unsuccessful, but he secured the highest ever compensation to a victim of a miscarriage of justice in a civil action against the police. South Wales Police paid O’Brien and his then brother-in-law Ellis Sherwood a total of half a million pounds in 2006.

“In accordance with counsel’s advice payment into court have been made in full and final settlement of the claims by Mr. O’Brien and Mr. Sherwood without an apology”, said Deputy Chief Constable Dave Francis. “It is emphasised that this has been done without any admission of liability”.

Bad Faith

Francis went on to claim that O’Brien and Sherwood had chosen to accept the payments rather than take their allegations to court, but O’Brien says he had no choice but to accept the payment, because he faced bankruptcy if he pursued his claim and the court awarded him less than the police paid into court.

“I stand by all of my allegations against the police”, said O’Brien. “They acted in bad faith. Let them sue me if they dispute this”. OʼBrien has made no secret of his allegations of bad faith. South Wales Police and those accused, especially Lewis have never sued him.

His solicitor who helped him to bring the historic claim was unimpressed with the way the settlement had been portrayed as well. “South Wales Police are trying to depict their payment of £500,000 plus legal costs of probably the same amount again as a commercial settlement,” said Sarah Ricca. “I wonder if anyone is fooled by such a claim.”

The Newsagent’s Three have yet to receive an apology from either the police or criminal justice system. Nor is there an investigation into unlawful conduct by police officers in this case despite the conclusions of former Detective Superintendent Alan Partridge and the endorsement of the appeal court.¹

Refusal

“Their refusal to apologise after all that they put me and my family through clearly shows that they refuse to accept the findings of the CCRC and appeal court”, said O’Brien. It has had a detrimental effect on the Forceʼs attempts to move on past the discredited methods of policing at that time

“I do not trust them to investigate this crime impartially any more”, OʼBrien said. “I tried to give them the benefit of the doubt, but they refuse to investigate my claims of bad faith in the original investigation, let alone allow the Crown Prosecution Service to decide whether there is sufficient evidence to prosecute any of them. Only a fully independent public inquiry can get to the truth of what happened in my case and other miscarriages of justice in South Wales”.

Consistent Critic

Since his release O’Brien has been the most vociferous critic of South Wales police over miscarriages of justice, including his own. A tireless campaigner for a public inquiry into several Welsh cases including the Cardiff Five and that of Annette Hewins, O’Brien has been a consistent thorn in their side.

Ironically an apology and an investigation into proven police malpractice in his case could have avoided the expense to the public that Francis appears so keen to avoid years ago.

Justice

“The fact that they paid such a large amount into court has nothing to do with concerns for the public purse and everything to do with the strength of the evidence against South Wales officers,” said Ricca. “There now needs to be a public inquiry into this and other cases involving South Wales police officers which raise such serious allegations of police misconduct.”

Nobody wants the murder of Phillip Saunders solved more than Michael O’Brien, so much so that he offered a reward of £50,000 for information leading to the convictions of the real murderer. All he ever wanted was justice.

Institutional Racism

Over 20 months before black aspiring architect Stephen Lawrence was murdered, the Metropolitan Police and Crown Prosecution Service (CPS) had the opportunity to save his life, but institutional racism prevented it. 15-year-old Rolan Adams was brutally murdered on February 21^st 1991. His then 14-year-old brother Nathan escaped the killers. By the time he returned – it was before everyone carried mobile phones – Rolan was dead. His carotid artery had been cut.

A group of 15 racist thugs who had been involved in racist attacks before and since were responsible. They hurled ugly racist abuse at the two boys who had just been waiting for a bus and attacked them. Mark Thornburrow was the only one of them convicted of murder. He was sentenced to life imprisonment with a recommendation that he serve a minimum of 10 years in jail. Despite that over 20 years after losing his son Rolan’s father, Richard, still feels betrayed.

Connived

“They connived to remove the racist element from the murder,” an angry Richard Adams said at the time. “We knew that we would not get justice when they started saying that territorialism rather than racism was the main motivation for the murder”.

Both police and CPS saw it as a triumph as Mark Thornburrow was jailed for life for the murder of 15-year-old Rolan Adams, but 15 racist youths attacked Rolan and his then 14-year-old brother Nathan, who survived the attack. Only 7 of the gang who had racially abused and attacked other black youths on the Thamesmead estate, were charged and that was reduced to 4, and only 3 eventually got 120 hours community service for violent disorder.

Fostering a Knife Culture

“The others are as guilty as Thornburrow”, Mr Adams told me. “My sons could not defend themselves from all of them. They should have been charged with murder by joint enterprise. If the police and CPS had done that my son’s murder might have been the last in the Borough of Greenwich instead of the first of three racist murders”.

Justice has finally taken its course in the notorious case of the murder of Stephen Lawrence, but the ordeal of the Richard and Nathan Adams and their family continues. It could and should have prevented the murders of Rohit Duggal and later Stephen Lawrence and many other knife-crimes too.

Cowardly

Mr Adams is dissatisfied with Thornburrow’s tariff. “10 years for the cowardly murder of my son is not enough,” said Mr Adams. “The judge acknowledged that it was racist and he carried and used a knife. What kind of deterrence is that? If Thornburrow had received the sentence he deserved, the knife-carrying culture that followed could have been stopped in its tracks. He should have been charged with the attempted murder of Nathan as well, which should have increased the tariff. The Lord Chief Justice could have increased his tariff and so could the Home Secretary at that time. Why didn’t they”?

Victimsʼ Rights

Their lives were torn apart by Rolan’s murder  a crime that should have been the pivotal moment in race relations in Britain. Mr Adams believes that the actions of the criminal justice system not only made their ordeal worse, but left other families vulnerable too.

“I have no doubt that institutional racism played a major part not just in the failure to give us justice, but encouraging the racists”, Mr Adams said. “We wanted victim’s rights back then, but we were left to fend for ourselves. The thugs hurled racist abuse at my sons before attacking them because they were black. They did nothing wrong. If the police and CPS had done their jobs properly, Rolan’s murder would have been seen as the racist crime it was and the families of Rohit Duggal and Stephen Lawrence would not have faced that same racism by a system that should have known better”.

Failed Miserably

Witnesses, including Nathan, testified that it was a racist attack and the judge was satisfied that they were right. “The CPS should not have relied on the police alone”, said Mr Adams. “The police had a racist view that this was not a racist murder. They were wrong and they made a terrible ordeal for us even worse. The CPS should have relied on the witnesses. They were there and they knew it was racist. When the judge agreed with us that the thugs who attacked my sons were racist, the police and CPS should have agreed to an independent judicial inquiry to find out why we were failed so miserably. That could have prevented other tragedies”.

Richard and Nathan and their family suffered a terrible ordeal. Nathan turned his back on a promising career in football. He went off the rails as a result of that terrible February night. He has got back on track without any help from the authorities.

“The police and CPS should be thoroughly ashamed of themselves”, said Mr Adams. “Not only did they fail us miserably in the prosecution, but they gave us no support either. Nathan especially really needed help. It took us many years to recover and ensure that Rolan has the fitting legacy he deserves.”

Legacy

They have established the Rolan Adams Legacy Trust to make sure that this important story in Britain’s race relations is never forgotten. They also want justice for both Rolan and Nathan. “Thornburrow got a minimum recommendation of 10 years, but he eventually served only 13”, said Mr Adams. “Why? It was a cowardly racist murder and he claimed he acted in self-defence. 15 against 2 and he had a knife as well and he is allowed to get out too soon”. His thoughts on that are understandably unprintable.

He has no doubt that institutional racism robbed his family of justice and that if the CPS had prosecuted the others through joint enterprise it would have sent a message to others not to encourage racist attacks and even restrain knife-wielding thugs like Thornburrow. He thinks that had those lessons been learned early enough, Rohit Duggal and Stephen Lawrence among others might still be alive. But he wants more – a legacy for Rolan and the justice he and his family were denied 20 years ago.

“There have been fantastic advances in forensic science in the last 20 years”, said Mr Adams. “The police and CPS have a chance to redeem themselves by investigating Rolan’s murder and the attempted murder of Nathan properly through modern investigative methods and forensic science. Both Rolan and Nathan are entitled to justice even if it is 20 years later than it should have been”.

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 and 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.