My latest book Trials and Tribulations – Innocence Matters is available to order through FIP. Our next publication will be Bad Form – How Tariffs Protect the Guilty and Punish the Innocent. It will detail the issues I discuss in the video in greater detail.

https://www.facebook.com/satish.sekar.3/videos/1376131822491496/

Vindication

Almost 20 years ago Zandra Mitchley and teenagers Shaun Nel and Claire Silberbauer were murdered in a notorious armed attack on a car approaching Eikenhof, which is near Johannesburg. All the occupants were white people with no connection to the Apartheid state.

The attack shook the country. It happened as South Africa’s transition from Apartheid to majority rule was taking shape. If its aim was to derail that process it almost succeeded, as the police and prosecutor tried to make political capital from the tragedy, accusing and falsely convicting three innocent men – men they knew were innocent.

The African National Congress and its armed wing Umkhonto we Sizwe had ended their armed struggle against Apartheid. This case was used to try to claim that the ANC were negotiating in bad faith – they were not. The interests of justice were disgracefully sacrificed to shameful political expediency and the perceived interests of a criminal regime – a crime against humanity, no less. In a system pock-marked by terrible affronts to justice this remains one of its worst ever miscarriages of justice.

It is the clearest of South Africa’s vindication cases – a difference-making travesty of justice that could and should have ensured that the new South Africa, the so-called Rainbow Nation, has a criminal justice system that is the envy of the world. Instead apathy, cynicism and political opportunism reign in a sorry tale of justice betrayed again and again.

Shameful

Three men were wrongly convicted of the three murders and the attempted murder of Norman Mitchley and Craig Lamprecht in the Eikrenhof attack. Siphiwe James Bholo, Sipho Gavin and Boy Ndweni (the Eikenhof Three) had strong alibis that they were in Wesselsbron, about 380 kilometres away when the attack occurred. It mattered not a whit to investigators and South Africa’s criminal justice system past and present.

Alibi witnesses were shamefully bullied. Perjury was committed. There was colossal non-disclosure of vital evidence that not only proved the Eikenhof Three innocent, but that the whole case was a gross conspiracy to pervert the course of justice. It was well known that the Eikenhof Three were members of the African National Congress (ANC) and that the attack had been organised and executed by the Azanian People’s Liberation Army (APLA) – the armed wing of the Pan Africanist Congress of Azania (PAC).

This information and more was ruthlessly suppressed. But even after it emerged the South African criminal justice system kept the lid on the scandal, denying innocent men the clear acknowledgement of vindication that had been proved beyond reasonable doubt – any really. Despite a plethora of causes for concern there has been no investigation of the notorious case to establish what went wrong and prevent repetition to date, let alone criminal sanctions of those responsible.

Precedent and Necessity

The convictions of the Eikenhof Three were eventually quashed on appeal. A retrial was ordered, but it has never taken place and almost certainly never will. It leaves an element of doubt about their innocence where no credible doubt exists. Their case is too important to be left in limbo. It is part of a wretched pattern of abuse of justice, even in vindication cases like this.

The case of the Eikenhof Three is the difference-making case for South Africa. During the transition from Apartheid the Truth and Reconciliation Commission (TRC) was established. Among those who applied for amnesty was Phila Dolo. He ordered the attack. A raid on a PAC (Pan Africanist Congress of Azania) ‘safe-house’ in Botswana yielded documents including Dolo’s report on the Eikenhof attack.

There is no doubt that it was an attack carried out by the APLA. Even weapons used in the attack were linked to Dolo and therefore the APLA. Gavin and Bholo had been sentenced to death and Ndweni to 17 years – only his youth saved him from a sentence of death for a crime the authorities knew full well none of the Eikenhof Three committed.

Despite a change in government – a landslide in favour of three innocent activists’ party the ANC – they remained in prison. Even after the TRC reported, giving amnesty to Dolo, meaning it believed his account of the Eikenhof attack, the Eikenhof Three were not immediately freed. Absurdly it was the PAC who picketed the jail they were held in, demanding their release.

And now over a decade after they were released on appeal with a retrial ordered they remain cheated of even an explanation of why they were deemed expendable casualties of a war that had ended and of a peace process that has yet to deliver justice and an apology to them. It is the very least that they deserve. In fact, it is the very least that the new South Africa deserves.

Satish Sekar © Satish Sekar (June 1st 2011)

Discretion and Valour

Of the seven vindication cases in Britain four of them are no longer eligible for compensation or after-care and it is too late to help a fifth, who would have qualified.[2] The abolition of the Discretionary Scheme for compensation in 2006 denies anyone whose conviction is quashed too soon eligibility for compensation. The current government endorsed that shameful decision.[3]

“The discretionary compensation scheme was abolished on 19 April 2006 by the then Home Secretary and the coalition Government have no plans to reintroduce it,” Minister of State at the Ministry of Justice, Lord (Thomas) McNally replied to a written question from Lord (John) Laird earlier this year.[4]

“We will continue to consider applications for compensation under the statutory scheme, Section 133 of the Criminal Justice Act 1988, which fully meets our international obligations.”

Scandalous

That means that some people who have been vindicated would be excluded if their cases were to happen now, but compensation is only part of the problem. There is an even bigger scandal over the provision of care or restoration.
A ludicrous error passed unnoticed nearly a decade ago. The Home Office recognised that victims of miscarriages of justice required and deserved assistance to rebuild their lives. It established a Working Group to consider the issue and establish such a scheme. It was given terms of reference and so was Peter Shore (not the former MP of that name), the Consultant that it hired to conduct a scoping study.
Shore failed to execute those terms of reference adequately and recommended a scheme that excluded the vast majority of victims of miscarriages of justice. Only Sean Hodgson is alive and eligible for the scheme operated by the MJSS, which begs the question, what use is it if it excludes the demonstrably innocent?[5]

To its shame and disgrace it failed to highlight the obvious injustice of its remit excluding among others Colin Stagg. There is plenty of shame and disgrace to go round over this and that includes mainstream media.

Plain Wrong

The term injustice is grossly inadequate to describe the suffering that Stagg and others like him went through. If he is not the victim of a miscarriage of a justice, the term has no meaning. Stagg is entitled to more than just compensation for what happened to him.
He did not ask for what happened to him to occur and is in no way responsible for the incompetence and unethical practices that ruined his life. He will always be identifiable as the suspect in the Rachel Nickell case regardless of his proven innocence.
At last he has now received apologies for what he went through, but the state has an obligation to restore him to the life that he should have had if that miscarriage of justice had not happened to him. That has not happened and the coalition government has no intention of ensuring that it does. In fact, its ministers donʼt even know its own policy.
“The Ministry of Justice funds the Miscarriage of Justice Support Service (MJSS) to help those who have had their convictions quashed by the Court of Appeal,” McNally replied to Laird. “The MJSS provides help with issues such as healthcare, accommodation, finance and relationships. The MJSSʼ funding has recently been extended for a further year to March 2012 and the Ministry of Justice is working with it to improve the support they provide.”

Disgraceful

First of all, the MJSS does not provide help to those who have had their convictions quashed on appeal – it only provides that limited assistance to a tiny minority of such people. It shamefully reneged on a commitment to help Tony Paris and Yusef Abdullahi eight years ago to protect its funding, which included their wages.
The fact remains that there are several victims of miscarriages of justice who receive no help at all from the MJSS. If McNally is unaware of this, he ought to be ashamed of himself. The MJSS had the opportunity to help and improve the so-called service it provides eight years ago. It chose to sacrifice the interests of the undeniably innocent to protect its wages, claiming it was to protect its funding.
That disgraceful decision helped to cost lives. At least three vindicated people died without living to fifty without receiving any help whatsoever from the MJSS or the Ministry of Justice. Neither can ever make amends.

Exclusion Ordered

The original defendants in the Damilola Taylor case are at least still alive, but they receive no help from the MJSS. They were children when it happened; they had criminal records and were far from angels. So what!
They did not kill Taylor and they did not ask to be wrongly accused of a crime that shocked the nation. They have been compensated now after a long and hard battle and even that is resented. Why?
Where is the anger at the shoddy investigation that secured abysmal evidence from the child witness referred to as ʻBromleyʼ? Where is the anger at the utter incompetence of Sian Hedges that resulted in the wrongful release of the Preddie brothers (Ricky and Danny)?
The outrage at the size of the award given to two brothers (not the Preddies) is totally misplaced. They deserve compensation – at least that amount, but the size of the award given to Taylorʼs family is insulting. That should be addressed by increasing the award made to Taylorʼs family, not by attacking the award made to boys who stood trial when they should not have.

Motes and Specks

Meanwhile, we allow the undeniably innocent to be treated in a fashion that shames each and every one of us. That mainstream media ignores this scandal disgraces them too. That governments of both political hues refuse to act to end this outrage betrays every concept of justice.
They go to war in foreign fields to defend human rights, yet these hypocrites tolerate and ignore the human rights abuses that they allow to occur right here in Britain. By what right do they dare to lecture others when this is how they allow people they know to be innocent beyond doubt to be treated? It appears they need considerable assistance to remove the enormous mote from their own eyes, while tackling specks in the eyes of others.

Progress

The Fitted-In Project led the way in highlighting the treatment of these victims and in one of the cases we helped fill the void caused by the betrayal of the innocent with the assistance of a remarkable advocate and champion of restorative justice, Roger Backhouse QC. He led the delivery of after-care in practice to his former client, Yusef Abdullahi, without which, shorn of help and hope, the prospect of recovery was bleak.
While Backhouse and others provided the assistance required to an undoubtedly innocent man, the government and MJSS ignored that manʼs needs and those of the majority of victims of miscarriages of justice.[6]

Even now eight years later, the government has no plans to right the wrong that allowed this shameful injustice to occur. Instead it will consult with the very organisation that betrayed the innocent to protect its funding – shameful!

The Effects of Vindication

Instead of consulting people that played no part in catering for the needs of the vindicated, even at the cost of consigning them to early graves, we call for meaningful research that will boost our understanding of a shamefully neglected group of victims of miscarriages of justice.
The psychological effects of vindication remain a mystery. The vindicated are no more innocent now than they always were. The difference is that now they are believed by all but those who refuse to see. But what about the effects on vindication? Has the very thing they craved actually damaged them?
For many years they suffered whispering campaigns, including among so-called friends and developed paranoid reactions to their own communities, wondering who believed them and who didnʼt. Friendships and other relationships broke down under the strain of the certainty they now have against their knowledge that they should have been believed and supported to the hilt earlier.

Justice Betrayed

Feeling hurt – betrayed even – by people they trusted, but whose support was not strong enough, the vindicated may need extra support, or at least understanding. That requires research and it must include the psychological effects of tariff abuse.
Some vindicated people have seen the truly guilty receive more lenient tariffs than they did. How can this be justified and what effect does it have on the mental well-being of the vindicated? There is not so much a dearth of research on this – it is virtually non-existent.
Tariff Reform and after-care, especially in relation to the vindicated, are the flagship projects of The Fitted-In Project. They even involve sport as a means to aid their recovery.
We believe that research is essential on both topics and we are conducting it, but there are areas that we cannot cover as efficiently as we would like, so we call on the Clinical Forensic and Legal Medicine Section of the Royal Society of Medicine, other organisations and individuals to join us in facilitating understanding of the psychological effects of vindication in terms of after-care needs and also tariff abuse through research. We hope that its members will research these issues, or facilitate research projects with us on these issues.
It is through knowledge that their needs can be addressed, but first they need to be understood – that is a task to be led by professionals in the field through rigorous research. It is in our opinion an essential tenet of another integrated approach – one that integrates the vindicated back into society and the life they should have had.

[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]  Subsequently, a sixth who plainly was eligible has died, so it is too late for him too.

[3]  The current government has extended the attack on compensation to demand a standard that appears to demand that the wrongfully convicted must be exonerated – a standard that can prove impossible to meet unless the real perpetrator is brought to justice. Few independent observers believe that Barry George had anything to do with the murder of former gymnast and later television presenter, Jill Dando, but he has been denied compensation on the grounds of exoneration. This is grossly unfair as the criminal justice system rarely makes findings of innocence. A not guilty verdict includes both the innocent and also defendants who have not been proved guilty. The distinction is moot. Similarly convictions are quashed on appeal because they are unsafe. That includes both the innocent and appellants whose convictions were faulty. Again the distinction is moot as neither the trial nor appeal gives a finding of innocence, so how does a wrongfully accused prove that they have been exonerated and are therefore entitled to compensation?

[4] Please note that this was in 2011.

[5] That was correct when this presentation was given to a conference of medical practitioners, which included distinguished forensic pathologists.

[6]    See how we exposed this scandal in A Lack of Care at http://fittedin.org/fittedin/?p=709 and Who Cared? at http://fittedin.org/fittedin/?p=707

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

Cyclone of Injustice – Joyce Gilchrist

Joyce Gilchrist was once fêted – the go to analyst, but there was a hidden story. Gilchrist swept through Oklahomaʼs criminal justice system – a cyclone of injustice – leaving a trail of devastated lives in her wake. This included victims of miscarriages of justice and the original crimes too as well as the people of Oklahoma whose interests were betrayed by Gilchristʼs failures.

Among the cases that she got horribly wrong was that of Jeffrey Todd Pierce. He was convicted of rape, largely due to evidence manipulated by Gilchrist. Pierce had a strong alibi and no previous convictions. He lost fifteen years of his life for a rape he did not commit. There is no doubt that he is innocent as the real rapist Omer May Jnr. was identified by DNA testing, but May has not and never will be charged with the vicious offence that he committed.

Why? Because the statute of limitations ran out while Pierce was wrongly incarcerated. That is obscene. There should be no statute of limitations on justice, especially when it expired due the criminal justice system persecuting an innocent man. Whether it takes days, years, decades, or even centuries, there should never be a statute of limitations of any kind on the search for justice.

This is not the only vindication case involving Gilchrist. Even now, after her appalling practices were exposed at the cost of her job and others their liberty – possibly lives even – Gilchrist sees herself as the victim, outrageously claiming that she is being punished for alleging sexual discrimination, rather than her practices, which were hopeless at best and more likely corrupt.

Even the vindication of people like Pierce did nothing to chasten Gilchrist, let alone convince her that she was wrong. As with Michael Heath in Britain, the investigation into her practices slammed the lid shut on a scandal of epidemic proportions, especially regarding those who had already been executed.

Gilchrist could not have thrived in the grey areas of disclosure had there been an integrated approach between the forensic sciences and the judicial processes. Oklahoma put funds aside for DNA testing in the wake of the Gilchrist Affair, but the fallout was controlled, meaning a perfect opportunity to deliver important changes to the system that could have prevented repetition was needlessly lost.

The use of Police Laboratories is a case in point. There is no doubt whose side scientists working in those labs were on and were meant to be on. And that creates the conditions where ʻscientistsʼ like Gilchrist can operate, but Gilchrist did not function in a vacuum.[2]

The criminal justice system of Oklahoma is culpable too. Colleagues that opposed her were marginalised and accused of professional jealousy. Meanwhile, prosecutors loved her and senior jurists defended her tooth and nail. She flourished through this dark alliance of injustice.

She wrecked many lives with impunity and the system tolerated it and encouraged it even by failing to heed the warning signs repeatedly. At least eleven sentenced to death in her cases were executed.

Some were freed from Death Row, but the Gilchrist Scandal demonstrates the need for eternal vigilance throughout the forensic science and legal communities. Sadly, there are some experts who not only cannot be relied on to tell the truth, but are also not deterred from shoddy practices even with lives at stake.

Despicable

The death penalty has gone in Britain, but powers of life and death remain. Nothing illustrates this better than cases where there is no doubt about innocence because no crime occurred, or the real perpetrator was caught and convicted, or identified if dead. It does not even require a trial to ruin lives. For example the tragic story of Jaycee Lee Dugard claimed another victim.

Her step-father Carl Probyn witnessed the then 11-year-old girl being kidnapped by two people near her home in Lake Tahoe, California on June 10^th 1991. Nancy Garrido bundled Jaycee into the car that Probyn described, while her husband Phillip, a registered sex offender, drove the car.

School-children witnessed the kidnapping too. Probyn gave chase on a bicycle, but could not keep up with the kidnappers. After an eighteen year ordeal Jaycee was found alive on August 26^th 2009, having been kept captive by the fiendish couple for almost two decades. Her eighteen year disappearance had been resolved, but the girlʼs childhood had been stolen.

Garrido had repeatedly raped her and Nancy was culpable too. Jaycee had two daughters by him, both the result of the rape of a minor. The girls were told that Jaycee was their sister. They know the appalling truth now. The Garridos pleaded guilty to kidnapping and sexually assaulting Dugard on April 28^th 2011.

Investigative opportunities were missed and vital time was wasted, investigating Probyn, whose marriage to Jayceeʼs mother Terry was destroyed by the kidnap and suspicion directed at Probyn, who was not only innocent, but had provided solid investigative leads.

Consequently, Probyn is a victim of this disgraceful case too – nowhere near the same extent as Jaycee and her daughters – but a victim nevertheless. He was never charged, let alone wrongfully convicted or charged, but such accusations are soul-destroying.

There was smoke – hot air actually – but no fire there, although the suspicion still managed to burn Probyn, who lost his marriage and family to it.

The State of California let them all, especially Jaycee, down appallingly. She has been compensated and is trying to rebuild her life, but nothing can ever compensate her for that ordeal, or for the failed opportunities to rescue her.

Garrido was a convicted rapist and subject to probation visits and from police over the eighteen years. He had pleaded guilty to several counts of kidnap and rape and was jailed for 431 years on June 2^nd 2011. His wife got 36 years to life, agreeing to waive appeal rights.

While the overwhelming measure of sympathy and support must go to Jaycee, her mother, daughters, biological father and Probyn are victims too.

Vindicated

Horrid as it undoubtedly was to be wrongly suspected of involvement in such an offence as the kidnap of Jaycee Lee Dugard, it doesnʼt and cannot compare to actual incarceration for crimes committed by others. There are, according to the Innocence Project, over a hundred cases in the USA where the real perpetrator has been identified after a miscarriage of justice.

The American definition is however inadequate in our opinion as it does not include people like Probyn, but we have clearer examples that illustrate the point. There is no doubt about the vindication cases, yet there are no investigations of what went wrong – no attempt to understand how justice miscarried and why.

Not even attempts to establish if forensic science could have prevented it with one exception in Britain. But the USA is not alone. It has happened in Canada; it has occurred in Australia and New Zealand too and even in the Netherlands. Spain has suffered it too. Even China, Hungary, Belarus, Russia and a strange one in South Africa too have experienced them.

Absurd

This does not mention jurisdictions where the supposedly deceased people turned up alive and well later. Mpagi Edward Edmary spent eighteen long years on Death Row in Uganda for a murder he not only did not commit, but for a crime that did not happen. His cousin, Fred Masembe died on Death Row awaiting execution for this non-crime, untreated as he was there to be killed – an innocent man!

Meanwhile, George William Wandyake was alive and well, and even thought to have attended their trial. Why did the Ugandan authorities not demand proof that Wandyake was dead before trying, let alone convicting, innocent men of murder? Where was the compelling medical evidence justifying this prosecution?

It disgraces every concept of justice that this shambolic prosecution was allowed to pollute a court of law. It is also interesting that in all the discussion of human rights abuses in China, not a word is spent on vindication, despite a few cases where cases were solved by confessions secured by beating suspects until they confessed.

Notorious

A notorious double murder of police officers – they were executed – was solved in this manner. The defendant showed his injuries to the judge. He was sentenced to death, but it was suspended later.

Du Peiwu could easily have rotted in a Chinese prison for a crime he did not commit, but for sheer luck. The real perpetrators were arrested on other matters and confessed to the crime that Du had been convicted of.

It was a shocking miscarriage of justice in every way, especially regarding its victim. The man police officers tortured into confessing to a crime he did not commit was no ordinary victim of injustice. Du Peiwu was a fellow police officer, but that didnʼt save him.

Tolerating Injustice

There are other extraordinary cases of vindication in that jurisdiction too. If ever a criminal justice system cried out for an integrated approach between forensic sciences, investigative methods and court procedures, surely it was China.

These injustices were secured through torture, but let us not cast the first stone against China until we address the glaring flaws in our own system. We have tolerated rendition and the abuse of our citizens in the name of the ʻWar on Terrorʼ, while condemning other governments over their records.

By what right can we condemn other governments while tolerating these abuses and others that are ignored, undiagnosed even – abuses that shame and disgrace our society? We permit undeniably innocent people who have been wronged in our name to be treated shamefully.[3]

Let us remember Jaycee Lee Dugard and her family. They were betrayed by their own criminal justice system. No compensation can ever make amends. $20m does not return her stolen life and innocence to her.

It does not justify the failure to protect them – rights they had every right to expect and demand. Compensation does not, or at least should not, cater for their care needs. The psychological damage that has been done to them all needs to be addressed at state expense.

They were failed by the system that had a duty to protect them, so it owes each of them restitution to the lives that were stolen from them. And that duty extends to other innocent victims of injustice, especially the vindicated and that should begin here.

[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] I intend to highlight the effect of Oklahomaʼs cyclone of injustice in a forthcoming book.

[3] I am currently researching a book on these cases and others like them, which I hope will be published next year.

Radio Cardiff

Part Four with Georgina Sammut

Satish Sekar explains the very lenient tariff that the real murderer Jeffrey Gafoor received for atrocious murder of Lynette White. He details the deficiencies in the tariff system, how they came about and the problems of innocence in such a system. Sekar explains the setting of the tariff for the murder of Lynette and how the judge made mistakes determining the tariff and in the balancing of aggravating circumstances against mitigation. Sekar explains his motivation in continuing to fight for justice. He then explains the damage done to the victims of injustice and the failure to provide after-care. Sekar argues for a Truth and Justice Commission rather than a Public Inquiry. He explains the failure of Royal Commissions to address the problems as governments can pick and chose, which bits they want to adopt.

Part Five with Georgina Sammut

Satish Sekar explains the work of The Fitted-In Project, highlighting the extent of vindication throughout the world. He argues that vindication has the power to change criminal justice systems. The FIP is working with organisations in the USA. He details the problems with the Grand Jury system, illustrated by the recent case of Michael Brown. Sekar argues for Truth and Justice Commissions over all the issues in different jurisdictions. He also explains how they would work, be constituted and what he hopes it would achieve.

Part Six with Georgina Sammut

Satish Sekar explains the projects of The Fitted-In Project. He explains that the Crown Prosecution Service (CPS) and Attorney General failed to appeal against the leniency of the tariff imposed on Gafoor. He then details the lack of after-care and how the provisions of the government scheme excluded the vast majority of victims. Sekar highlights the benefits of sport to assist in the after-care of victims of miscarriages of justice. Michael O’Brien has benefited from it. Sekar also mentions the Dylan O’Brien Foundation.

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.

Stefan Kiszko was vindicated over a decade after his death by the conviction of the real killer of Lesley Molseed, Ronald Castree, but there are others who will never be vindicated. For them exoneration is as good as it gets, but they have to live with petty whispering campaigns questioning their innocence.

Hensley Wiltshire died in controversial circumstances in January 1989. Wrongly held in custody and denied the medical attention he needed Wiltshire deteriorated to the point of collapse. He had visited hospital twice in the night of January 5th-6th. The record of his injuries makes interesting reading. Significant injuries were discovered at the post-mortem examination that were not detected on either previous visit to hospital.

The discrepancy was never adequately explained. It was plain that either Tony Poole and/or Gary Mills had inflicted those injuries or Wiltshire had suffered a beating in the cells of Gloucester Police Station. The medical evidence was never properly resolved and nor was the issue of consent to be treated, but there were other causes concern that contributed to a terrible miscarriage of justice.

Inappropriate

Mills and Poole always instead that Mills had defended himself from three attacks by Wiltshire and that Poole was not involved. Neville Juke had been present throughout the incident in Poole’s Conduit Street flat. He was, as the jury recognised, an important witness, but the jury never heard from him.

Juke had been warned off attending the committal hearing. He had been threatened with arrest if he came. Juke recorded part of that conversation – one that then Detective Inspector Trevor Gladding lied about at their trial in 1990. Amazingly, Mills and Poole’s defence had that tape and therefore knew that Gladding had lied to the jury, but a well-respected QC didn’t play it to the jury.

Ian Macdonald QC believed that he would have had to call Juke to verify the tape. In fact he didnʼt. The now discredited Police Complaints Authority (PCA) proved that Gladding was the officer on the tape easily by comparing that recording to known examples of Gladdingʼs voice from interviews that he had conducted.

Had the jury heard that tape it would surely have destroyed Gladding’s credibility and shown the prosecution in a very poor light. And this error came from a very experienced and competent QC.

Permitting Perjury

But Gladdingʼs conduct was far from the only example of inappropriate conduct by police in that investigation that went unchallenged at trial. In time disclosure obligations changed and a pattern of misconduct emerged. A crucial witness claimed to have seen into the flat while Wiltshire was allegedly been attacked and heard Wiltshire say ʼNo, Tony, no!ʼ above the sound of a sound-system at full volume.

Unknown to defence lawyers police officers knew that the witness, Paul White, had lied. In fact, they knowingly allowed him to claim that he had gone there on his own in his statement when he had told them previously that he had gone there with another man who did not verify what White claimed to have seen and heard.

Integrity

It also emerged that Gladding and a colleague who later rose to the rank of Superintendent, John Jeynes, had misrepresented the content of Jukeʼs second statement to police. This had the effect of deceiving Mills and his defence lawyers into thinking that Juke did not support his claim of self-defence.

Having been bluffed in this manner not to call Juke, it took 14 years to acknowledge that the investigation lacked the integrity required to be the basis of safe convictions. It should never have taken so long. Neither Mills nor Poole received the extent of help and support that they needed to rebuild their lives, despite the existence of a government-supported scheme to assist victims of miscarriages of justice like them. Gary Mills sadly passed away on December 10^th 2012.

Exoneration and Vindication

Exoneration on appeal or acquittal at trial is where most miscarriage of justice cases are left – exoneration without acceptance of innocence. Unlike most I refused to stop investigating, believing that it was possible to resolve this case fully by finding the real killer.

The Cardiff Five were innocent, but Lynette White remained as robbed of justice as she had ever been and her family and society too were horribly cheated. This was and remains the difference-making miscarriage of justice in Britain, but only because it was possible to find the real killer and vindicate the originally accused, proving their innocence beyond doubt and that in turn would open the door to real change and not just for them.¹

Vindication of the Cardiff Five was essential. It began the process of acknowledging what had gone wrong and possibly redressing it. Outrageously the police were allowed to dictate the terms of establishing what went wrong – a process that ultimately failed miserably and created new victims in the process.

Historic

In July 2003 Jeffrey Gafoor became the first murderer in British history to plead guilty to a murder that had previously resulted in a miscarriage of justice. Like South Wales Police, he apologised to both Lynette’s family and the Cardiff Five.

To their eternal shame no other individual or organisation involved in the miscarrying of justice in this scandalous injustice has apologised, let alone taken responsibility for their roles in it. But justice requires more than apologies – far more – and it should not depend on vindication, which occurs too rarely.

Facilitation or Acquiescence

I have been involved in miscarriage of justice work for over two decades. The role of the criminal justice system in facilitating or at least acquiescing in miscarriages of justice can no longer be ignored. The Cardiff Five have been vindicated and it was a rare case where the poor performance of a lawyer – it ought to have been plural – was acknowledged, but several others have never been accepted.

For example, the tragic case of Stefan Kiszko was one where the performance of his QC disgraced every concept of justice. There is no doubt that Kiszko was innocent. He was accused of the murder of a child and dealt with severely by other prisoners unaware of his vulnerability and of comprehensive proof of his innocence.

Kiszko was vindicated 32 years after the appalling murder of eleven-year-old Lesley Molseed, but it was far too late. Kisko was long dead, but evidence of his innocence had been known for many years by then. It should have prevented his wrongful conviction and the scandalous theft of his life by an an incompetent system that failed to ensure that proof of his innocence was clearly presented to the jury.

Outrageous

His defence QC, later to become Home Secretary, Leader of the House of Lords and Governor of Bermuda, Baron David Waddington, made significant and outrageous errors of judgement. Despite being bombarded with masses of unused papers at the opening of Kiszko’s trial, Waddington did not seek an adjournment to go through it.

Waddington pursued a defence of diminished responsibility despite Kiszko refusing to authorise it. But the worst error of all proved Kiszko’s innocence beyond doubt and later the guilt of Ronald Castree. The murderer had deposited his semen on Molseed’s clothing. It did not match Kiszko and was later proved to have been deposited by Castree.

Even at his trial it was obvious that the semen proved Kiszko innocent. The former tax-clerk could not produce semen. The failure to present this evidence of innocence disgraces every concept of justice and Kiszko’s then defence lawyers failed him and society miserably.

This was a truly appalling miscarriage of justice – one of Britain’s worst ever – compounded by the fact that Kiszko died aged just 41 in December 1993, having been released after 17 years wrongful imprisonment the previous year. He never recovered from his ordeal – an entirely preventable one.

But it should not require vindication to learn the lessons of cases like this and there are others which will almost certainly never end in vindication. What about them?

Absurd

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

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

Horrific

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

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

Unconscionable

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

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

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

Remorseless

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

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

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

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

Unjustifiable

The Crown Prosecution Service was established over a quarter of a century ago. Among its high profile and spectacular failures is the Lynette White Inquiry. Its Code for Crown Prosecutors included criteria on sufficiency of evidence. When the Cardiff Five were prosecuted it had 13 – the overwhelming majority of them strongly suggested that it was a case that should never have been brought to trial.

The CPS has been avoiding taking responsibility for its numerous failures in this case for several years now. They even had the effrontery to claim that securing convictions justified the decision to prosecute. Since when has securing one of the most notorious miscarriages of justice in British history been a justification?

Excuses

When that was pointed out to it, they hid behind the recent proceedings against the former police officers, claiming that they could not answer the questions then. But they promised answers after the trial. The collapse of the trial was followed by pledges to respond that were quickly broken. The new excuse was that they would respond after HMCPSI reported, even though the concerns we raised were not part of that investigation and they knew that full well.

“The role of Her Majestyʼs Crown Prosecution Service Inspectorate (HMCPSI) is to enhance the quality of justice through independent inspection and assessment of prosecution services and, in doing so, improve their effectiveness and efficiency”, Baron (James) Wallace of Tankerness responded in writing to Baron (John) Laird.

“Although HMCPSI examines a range of cases as part of its normal inspection process, it does not investigate and report on individual cases unless, exceptionally, a case is referred to HMCPSI by the Attorney-General using statutory powers for matters intended for cases of general public concern” Lord Wallace continued.

Inadequate

This plainly was a case of great public concern, but so were many others. There are now six vindication cases in England and Wales¹. Many of them raise issues over the original prosecutions. The CPS has yet to be held accountable over any of them. HMCPSI has not been asked to investigate those or others too where prosecutorial misconduct or incompetence may have occurred.

“However, as a rule HMCPSI is not an investigative body”, Wallace continued. “HMCPSI has undertaken two recent reviews at the request of the Law Officers”. The HMCPSI report allowed the CPS to evade responsibility for its numerous failures over this case. The CPS has never explained its dismal performance in the Lynette White Inquiry. It should not be allowed to evade its responsibility to the public.