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.

The Long Wait for Justice

For more than twenty-one years Michael O’Brien has waited for an apology. South Wales Police intend to keep him waiting, despite paying half a million pounds to O’Brien and one of his co-defendant’s Ellis Sherwood to keep allegations of bad faith from being aired in court more than two years ago. Despite writing a book, several media appearances, reopened investigations and legal action, he is still waiting.

The decision to abolish the discretionary scheme for compensation and cap the amount awarded to the wrongly convicted may actually result in more civil actions being brought against police, eradicating the proposed savings. This case alone is likely to have cost the public around £1m.

It was re-opened in September 2003 after a cold case review. The murderer(s) of Phillip Saunders have not been brought to justice, nor are we any closer to discovering what went wrong in the original investigation.

Responsibilities

O’Brien has received no apology and the force has not admitted liability. It has been more than five years since the case was re-opened, yet there has been no breakthrough. It appears that attention was actually focused on the original defendants despite compelling evidence of their innocence.

During the re-opened investigation people close to O’Brien and Sherwood were arrested, but later released without charge. Over five years after the case was re-opened the perpetrator(s) remain at large.

Credible Evidence?

On October 12^th 1987 Phillip Saunders was viciously attacked and robbed outside his home in Anstee Road, Cardiff. He died five days later. O’Brien, Sherwood and Darren Hall were subsequently convicted of his murder. There was no credible evidence against them. Their convictions were quashed in 2000 after a year on bail pending their appeal.

After the historic settlement of the legal action by O’Brien and Sherwood, Deputy Chief Constable David Francis said, “Over a period of six years we [South Wales Police] have consistently maintained our position that the officers who worked on the inquiry into the murder of Phillip Saunders did so in good faith and the Force was not liable for malicious prosecution or misfeasance”.

Violations

The Newsagent’s Three, as they came to be known, were referred back to the appeal court in 1998 by the Criminal Cases Review Commission. Detective Superintendent Alan Partridge, then of Thames Valley Police, reviewed police conduct in this case. He found 115 violations of the Police and Criminal Evidence Act. This included handcuffing all of the defendants to radiators.

“Presumably, Mr Francis, police lawyers and the Police Authority believe that handcuffing us to radiators is a sign of good faith”, said O’Brien. “They used criminals against us, threatened our witnesses with prosecution and dropped serious charges against known criminals to get evidence against us. And then they used prison informers and a police officer with a history of overhearing confessions that hadn’t been made”.

Unnecessary Burden

Francis claims that the action was settled in order to avoid unnecessary expense to the public. To date he has failed to explain why it was necessary to run up legal fees for six years including fighting all the way to the House of Lords O’Brien’s attempts to adduce evidence about that officer, who claimed to have overheard incriminating admissions in the cell area of Canton Police Station between O’Brien and Sherwood.

A then Detective Sergeant Stuart Lewis had a history of overhearing so-called confessions in the that area. Five years before the arrest of the Newsagent’s Three, Robert Griffiths – one of the defendants in the Cardiff Explosives Conspiracy trial – was acquitted despite Lewis swearing on oath that Griffiths had confessed in the cells area. Lewis was involved in other controversial cases and was unlikely to give evidence on medical grounds.

If this investigation had been conducted in good faith and without misfeasance, why did they agree to compensate O’Brien and Sherwood and if the only reason was to save an unnecessary financial burden on the public, why did it take six years to reach this conclusion, racking up legal expenses on both sides in the process?