A Shoddy Prosecution
by Satish Sekar © Satish Sekar (November 14th 2008)
Incandescent
In April 1996 David Jessel, the then presenter of Channel Fourʼs sadly defunct Trial And Error, was justifiably incandescent with rage. He addressed the media brandishing a copy of Lord Justice (Sir Phillip) Ottonʼs judgment. “This is yet another shoddy judgment in a shoddy case”, fumed Jessel. It would take another seven years for the truth of just how shoddy the then Lord Justice Ottonʼs judgment was to see the light of day.
Gary Mills and Tony Poole had been convicted of the murder of Hensley Wiltshire in January 1990, after a year on remand, but it would take more than six years for the appeal to be heard and that judgment would be more than controversial – it was either cravenly dishonest, or Otton had allowed himself to be misled in spite of the evidence, or he had not examined the evidence which he claimed to rely on.
At its most charitable, he was plainly wrong.
Otton quoted a passage of an interview with Mills, arguing that it dispelled the prejudice of the refusal to disclose the statements of an eyewitness, Ian (Neville) Juke as the passage referred to claims allegedly made by Juke. Otton said, “Moreover, it was an accurate summary of the substance of Jukeʼs second statement”.
But it wasnʼt. A fact that would be acknowledged by both police officers who conducted that interview in a libel trial two years later and many others too. Either Otton (sitting with Mr Justices Keene and Ian Kennedy as they then were) had not read Jukeʼs statements and that passage of interview, or he had delivered a judgment that they must have known was untrue.
Integrity Lacking
We[1] became involved in this case in 1991, because there were several causes for concern about the integrity of this inquiry that bore similarities to the case of the Cardiff Five, which is an acknowledged miscarriage of justice. However, this had unique aspects as well which deserved the publicʼs attention.
Detective Inspector (DI) Trevor Gladding (the number two in the inquiry) had not only perjured himself and perverted the course of justice, but there was a tape-recording that proved it, yet despite the defence having a copy of it, the jury never heard it.
The conduct of Gloucestershire Police, especially that of Gladding and its impact on the integrity of the investigation that convicted Mills and Poole, was deeply troubling. If ever there was an inquiry that not only had to be squeaky clean, but also it had to be seen to be of the highest standards of professionalism and integrity, this was it.
Sadly, it fell far beneath those standards. The 1996 appeal revealed that the extent of police malpractice was greater than had previously been thought. Detective Constables Brian Paine and Mark Cheminais had allowed the witness Paul White to give information in his statement that they knew to be untrue. The appeal judges criticised their conduct, but decided that it would have made no difference because the jury would not have believed White anyway.
Incapable of Belief
There is no question that Whiteʼs evidence was false and should not have been relied on as he claimed to have seen and heard things from the street that beggared belief, but the jury had heard his evidence and they were not aware that he had been treated in a manner that undermined the integrity of the inquiry – an important aspect of this case.
Similarly, the Court of Criminal Appeal dismissed Juke as incapable of belief, yet the glossed over inconsistencies in the account of crucial witness Kimberley Stadden and substituted their own judgment for that of the jury. However, in 1996 this practice was far from rare, even though the law demands that the determination of facts is solely a matter for juries to decide.
Far too often appeal judges usurped the function of the jury and the case of Mills and Poole graphically illustrated the dangers of such an approach. The decision of the Law Lords in the case of Donald Pendleton reiterated that determining facts is the sole domain of the jury and it would eventually prove to be a significant case for Mills and Poole, but usurping the role of the jury would not be the only point of law that these eminent jurists would interpret wrongly.
Tarnished
During their unsuccessful appeal in 1996 and their 1997 appeal to the House of Lords, it was acknowledged that there were three material irregularities, each of which related to police conduct.
There was further evidence that cast the integrity of this inquiry in a very poor light, but the judges and the Law Lords were not convinced that a miscarriage of justice had occurred. By then we were firmly convinced that it had and also that this inquiry fundamentally lacked integrity and the prosecution was severely tarnished at best.
ʻExceedingly Unwiseʼ
Mills and Pooleʼs defence had intended to call Juke as a witness for the committal hearing in order to discover what he had said in his statements to police that the prosecution used their discretion to withhold, but their aims were thwarted because Juke was kept away from it due to the improper interference by DI Gladding prior to the committal hearing.
However, the defence lawyers had a tape of Gladding threatening Juke with arrest if he attended that hearing, but inexplicably this was not played to the jury at the 1990 trial, even after Gladding had denied on oath that the conversation had taken place.
A formal complaint lodged after the convictions proved that Gladding had indeed threatened Juke with arrest and more if he attended the committal hearing, but the investigating officer George Hedges wrongly concluded that Gladding had been mistaken rather than lying in his evidence at the trial.
Tainted
Evidence relied on by the appeal judges to dismiss the 1996 appeal was itself tainted. The judges believed that a passage of interview with Mills was an accurate summary of Jukeʼs second statement and that it dispelled any prejudice from the non-disclosure of that statement, but it did not.
Both officers involved in that interview (a then Detective Sergeant John Jeynes who has since been promoted to Superintendent) and Gladding accepted in evidence that it wasnʼt an accurate summary. Consequently, it increased the prejudice done to Mills rather than dispelled it.
Despite this the CCRC initially refused to refer the case back to the appeal court. Mills and Poole judicially reviewed that decision in December 2001. The judges, Lord (Harry) Woolf (the then Lord Chief Justice) and Mr. Justice (Sir Duncan) Ousley, found that the CCRC had not acted unlawfully or irrationally, but took the extremely rare step of voicing their concern over the case. Lord Woolf said, “Almost every aspect of the prosecution is tarnished”.
Wasted Resources
The CCRC had previously refused to grasp the point that the police malpractice had to be looked at first individually in case any aspect was so outrageous that the convictions had to be quashed and if not, then cumulatively in case, taken together, they so undermined the integrity of the inquiry that the convictions could not be tolerated.
It had assigned the case to a caseworker who failed to see the point and commissioners who also could not grasp it and preferred to completely ignore the points that their solicitor, Raju Bhatt, had raised in order to answer spurious complaints that had not been made. Bhatt had to repeat the actual points he made before opting for judicial review.[2]
This was not a case that the CCRC can take any credit from as the failure of several members of its staff to consider the submissions that had been made adequately caused unnecessary delays in dispensing a measure of justice to Gary Mills and Tony Poole, which resulted in them suffering unnecessary damage.
It wasted public resources that could have been put to better use. The CCRC acknowledges that it got this case wrong, but it has yet to implement procedures to prevent recurrence and formally apologise to them for prolonging their ordeal. We hope that it has improved its procedures to ensure that this never happens again.
[1] The Fitted-In Project did not formal exist then, but many of the people who established it and still participate, knew each other then and were working together. This was one of the cases that demonstrated both that and the need for us to organise formally to achieve our objectives.
[2] Before Bhatt took over the case, exactly the same point that Bhatt subsequently made was put to the CCRC by us. At the very least the CCRC should have answered the point being made, rather than an argument without merit that nobody had made. We hope they have learned that particular lesson.