Unaddressed Needs – Part One – Flawed Case Scenarios

Fitted In – An Integrated Approach[1]

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